Archives 8/25/05 thru 9/12/05
By AndrewHyman Comments (0) / Email this page » / Leave a comment »
Posted at 2:17pm on Sep. 12, 2005 Biden
By Marshall Manson
Sen. Biden said a moment ago that Americans need more protection of their civil liberties. Biden forget, of course, that Congress can pass as many more protection of liberties as are necessary at any time it wants.
Posted in Roberts —
Posted at 12:18pm on Sep. 12, 2005 A (Very) Basic Roberts-Hearings Primer
By Carol Platt Liebau
In preparation for the hearings that are scheduled to start at noon (Eastern), here is a handy, dandy overview of the members of the Judiciary Committee who will be conducting the hearings on John Roberts. It will be interesting to see who preens for the camera, which liberals succumb to hysteria, and which Republicans are effective in defending President Bush's supremely qualified nominee.
For a summary of the "issues" that will be raised in the hearings, look here in The Washington Post. But be aware that the piece is somewhat biased -- take this sentence: "[Roberts] wrote of the 'perceived problem of gender discrimination' and criticized state efforts to address it."
Well, the only "state effort" to address gender discrimination that I've heard of Roberts criticizing is the socialist scheme of comparable worth. And that's less an exercise in righting gender wrongs than it is an attempt to impose collectivist economics on all of us.
We can only hope that the MSM does a more evenhanded job of covering the hearings.
Posted in Judiciary Committee —
Posted at 11:47am on Sep. 12, 2005 And they're off!
By AndrewHyman
The Roberts hearing is set to start at noon. C-Span has full web coverage, and will also reair the hearings during primetime each day they are held, starting at 9pm EST on C-SPAN2, available through streaming video via their website. You can go direct to the live C-Span video by clicking here (Windows Media Player) or here (RealPlayer).
[UPDATE - Krempasky] - You can also catch Mark Ambinder liveblogging the hearings over at his new digs on the National Journal site.
[UPDATE #2 - Andrew] - Tom Goldstein is also liveblogging at SCOTUS Blog, and the Washington Post is liveblogging too.
Posted in News —
Posted at 8:51am on Sep. 12, 2005 New Clips, Mon. Sept. 12
By Marshall Manson
Lots of stories today about the opening of the Roberts hearing. But the most important clip is the last one -- a commentary from former Solicitor General Ted Olson calling for a fair hearing and fair vote. It's from the WSJ, so you'll need a subscription to the whole thing, but I've pasted an excerpt below. Check back to Confirm Them throughout the day as our team blogs the hearings and the day's events.
Senate To Start Roberts Hearings
Charles Babington and Jo Becker, Washington Post
Roberts Spotlight Falls on Senators, Too
Sheryl Gay Stohlberg, New York Times
Senators Aim to Solve the John Roberts Puzzle
David G. Savage and Richard B. Schmitt, Los Angeles Times
Kathy Kiely, USA Today
On Judiciary Committee, the drama's guaranteed
Kathy Kiely, USA Today
Speedy Confirmation Expected for Roberts
Jesse Holland, Associated Press
Battle over US Supreme Court begins in shadow of Katrina
Agence France Presse
Editorial: The Roberts Hearings
Washington Post
Editorial: Roberts' past vs. U.S. future
USA Today
New Criticisms Aimed at Roberts
Peter G. Gosselin, Los Angeles Times
Backers, foes await Roberts hearings
Charles Hurt, Washington Times
Historic Stage Will Host Roberts' Hearings
Laurie Kellman, Associated Press
Roberts' opinions hit close to home for senators
Charles Hurt, Washington Times
Commentary: Shall We Dance?
Manuel Miranda, Opinion Journal
Commentary: John Roberts Deserves A Dignified Hearing
Ted Olson, Wall Street Journal (Subscription Required)
Excerpt:
As many of Judge Roberts' predecessors have explained, including, most recently, Justice Ruth Bader Ginsburg, it is ill-advised for a candidate for judicial office to express a formulated position on even the most fundamental questions that might later come before the Court. It may be expedient for a nominee to express support for Brown v. Board of Education or Marbury v. Madison or to reject the Dred Scott decision. Nearly everyone would nod approvingly, at least in the abstract. But where do such answers lead, and where does the pandering end? The simple fact is that there is no principled line to draw once a nominee starts down that seductive slope.
The most appropriate response to these questions is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.
As to the memoranda John Roberts wrote as deputy solicitor general, they are sensitive, deliberative analyses of cases pending at the time, inseparable from memoranda written by career Justice Department personnel. They candidly evaluate the positions taken or urged by government lawyers, comment on judicial decisions, and evaluate the strengths of the government's case. They are developed with the expectation that they will remain confidential. In Judge Roberts' case, they may even contain assessments of the justices with whom he may soon be serving. Failure to protect the integrity of these materials will not only damage the public interest in top-flight government lawyering, but will forever inhibit future officials from frank internal assessments of litigation strategy.
Solicitors-General for Presidents Kennedy, Johnson, Nixon, Ford, Reagan, Clinton and both Bushes have firmly emphasized the vital importance of protecting the confidentiality of these records. No partisan impulse motivated the uniform public expression of that position, and there is no justification for breaking with that tradition. The price for doing so will be paid by every future president -- and the nation.
The Senate confirmation process should be conducted with the same dignity, restraint and professionalism that we expect from judges. Before the commencement of the impeachment trial of President Clinton, over which he was to preside, Chief Justice Rehnquist gathered members of Congress before him. He had only two words of advice: "Be fair." That simple yet wise admonition should dictate the tone of the Senate's confirmation of his successor.
Posted in Uncategorized —
Posted at 10:28pm on Sep. 11, 2005 Specter: No Gonzales
By Carol Platt Liebau
Interesting that "moderate" Republican and Senate Judiciary Committee Chairman Arlen Specter has counseled against the President nominating Attorney General Alberto Gonzales to the Supreme Court.
He bases his advice on the "tough hearing" that Gonzales just completed to become attorney general. It's the right advice for the wrong reason.
The President has nothing to fear from a "tough" confirmation fight for a good candidate -- one who can help the country understand the importance of placing a constitutionalist on the Court, rather than another judge who believes in an activist and elitist "living Constitution".
If there is anything of which the President should be wary, it would be breaking his pledge, made as recently as last September:
"I will continue to appoint federal judges who know the difference between personal opinion and the strict interpretation of the law."
We're counting on you, Mr. President.
Posted in SCOTUS —
Posted at 9:04am on Sep. 11, 2005 News Clips, Sun. Sept. 11
By Marshall Manson
Lots of stories previewing the hearings today. Linda Greenhouse's piece in the NYT is a must-read.
Judge Roberts, the Committee Is Interested in Your View on . . .
Linda Greenhouse, New York Times
Roberts Cultivated An Audience With Justices for Years
Michael Grunwald, Washington Post
Commentary: The Next Madame Justice
Robert Novak, Creators Syndicate
Roberts May Be Sidelined in Some Cases
Gina Holland, Associated Press
Specter Won't Limit Roberts Queries
Maura Reynolds, Los Angeles Times
Senator Will Not Ask Roberts to Take a Stand on Abortion
Sheryl Gay Stohlberg, New York Times
Specter Calls Hearings for Chief Justice A 'Challenge'
Charles Babington, Washington Post
Roberts likely to move slowly, build credibility
Stephen Henderson, Knight Ridder Newspapers
Chief justice post carries clout
Guy Taylor, Washington Times
The Memo That Rehnquist Wrote and Had to Disown
Adam Liptak, New York Times
Rehnquist court left much unsettled
Peter Canellos, Boston Globe
Robertsââ‚â€And Then the Real Battle
Newsweek
Bennett Roth, Houston Chronicle
Bush gets chance to put mark on court
Julie Hirschfeld Davis, Baltimore Sun
Roberts confirmation hearings may give Bush a brief reprieve
Dick Polman, Knight Ridder Newspapers
Posted in News —
Posted at 4:49am on Sep. 11, 2005 Specter Releases Opening Statement
By AndrewHyman
On Monday, Senate Judiciary Committee Chairman Arlen Specter will say the following, according to the NY Times:
While I will not ask Judge Roberts whether he would overrule Roe, there are, in my opinion, entirely appropriate questions on his jurisprudential views that might be asked....I consider it appropriate to question him as to his views on stare decisis, or following precedents, as well as his views with respect to the importance of stability in the law, which Judge Roberts has identified, along with 'modesty,' as one of his lodestones.
Specter, of course, is hoping to get Judge Roberts to pledge allegiance to the new-fangled doctrine of "super-stare decisis." Professor Earl Maltz wrote about that doctrine shortly after Planned Parenthood v. Casey was --- as Senator Schumer would say --- "passed by the Supreme Court" in 1992. Here's what Maltz said:
In essence, the opinion asserts that if one side can take control of the Court on an issue of major national importance, it can not only use the Constitution to bind other branches of government to its position, but also have that position protected from later judicial action by a kind of super-stare decisis.
For further background about stare decisis, see here. If I were a Senator, my question on this subject would be simple: "Judge Roberts, if millions of human lives may hang in the balance, do you think it's more important that an issue be settled than that it be settled right?"
UPDATE: Sen. Specter's full statement is here.
Posted in News —
Posted at 8:01pm on Sep. 10, 2005 I Like This Picture
By AndrewHyman
Hat Tip: One of our commenters, named Aurel.
UPDATE: But don't jump to any conclusions. The person on the left is Christopher Putala, who was described by the Washington Post as one of John Kerry's best fundraisers. And I thought she only spoke to such people if she must.
Posted in Images —
Posted at 5:41pm on Sep. 10, 2005 Conservative = Reprieve?
By Carol Platt Liebau
Here's an interesting piece suggesting that the hearings for John Roberts are serving as a temporary political "reprieve" for President Bush.
It notes that "[Democrats]'ll probably lose on Roberts himself, because perhaps a dozen or more Democrats (especially centrists from red states) may vote for him in the end, because Roberts appears to be broadly acceptable to the public."
In the next paragraph, the story concedes,
In the words of John Maltese, a Georgia-based political analyst who follows confirmation battles: "Bush won the election, and people generally believe that presidents have the right to pick a nominee they agree with. Yes, Roberts is a conservative, but what else would people expect from the Bush administration?
The piece then goes on to discuss the relative probabilities of Bush picking either a moderate or conservative for the next seat. Given the foregoing quote about what people "expect" from the Bush administration and the piece's discussion of the importance of the President holding his base, why on earth would Bush pick a moderate?
Especially when polls show that the public is on to the political nature of the charges levelled at Supreme Court nominees, that a plurality don't believe in a "living Constitution" and that most believe that the Senate can't do the job in a bipartisan and fair manner.
By all this logic, if the relatively noncontroversial John Roberts nomination is a brief political reprieve for the President -- shifting the discussion from areas where many don't agree with him to an area where many do -- just think of the lengthier political reprieve the President would get while the Senate fights it out over a Luttig or Jones nomination.
Posted in SCOTUS —
Posted at 12:47pm on Sep. 10, 2005 Four Topics to Watch For During Roberts Hearings
By AndrewHyman
Although this site features a lot of gossip and humor, we're also concerned about serious legal issues involved in the confirmation process. From a legal perspective, it will be especially interesting (at least for me) to see whether four things happen during the Roberts hearings.
First, Roberts will undoubtedly be asked whether or not he discerns any "unenumerated rights" that are protected by the Constitution. I hope he says "yes." Here's what James Madison said when he introduced the Bill of Rights in Congress on June 8, 1789:
It has been said that in the federal government [a Bill of Rights is] unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation....
Clearly, if the federal government has not been granted power to prohibit some individual behavior, then that individual behavior may be considered an individual unenumerated right that can be enforced in court against the federal government. Although the feds have been delegated vast power to make laws governing Washington D.C., federal power is much more limited outside of Washington D.C., and so in the various states there are many unenumerated rights that are enforceable against the federal government. However, it cannot be emphasized enough that those unenumerated rights are not enforceable against the states, because those unenumerated rights cannot be considered "privileges or immunities of a citizen of the United States" (i.e. citizens in Washington D.C. do not enjoy those rights vis a vis the federal government).
The second thing that I'll be especially interested to see in the Roberts hearings is whether there is any overlap between Senators' irateness about the frequency of judicial review, and Senators' concerns about jurisdiction stripping (also known as "court stripping"). Senator Specter, for example, is upset that SCOTUS has enforced limits on the scope of the commerce clause, and Senators may ask whether Roberts believes Congress is free to remove such matters from the jurisdiction of SCOTUS or (more controversially) from the jurisdiction of the federal courts altogether.
Personally, I prefer the alternative solution discussed by Jed Shugerman recently in his article "A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court," 37 Georgia Law Review 893 (2003). Shugerman pointed out what has been pointed out many times before: Congress is free to give the Chief Justice and one or two other associate justices a collective veto whenever the Court would otherwise hold a state or federal statute in conflict with some particular aspect of the Constitution. I have never heard any reason why such a veto would be unconstitutional, and it would go a long way toward restoring democracy in the United States.
A third topic that I would really like to see discussed at the Roberts hearing is the treaty power, although I am not hopeful that it will be mentioned. Senators should defend their constitutional power to approve or reject treaties. It seems like we're on a path to where a President can always avoid the two-thirds vote required in Article II, Section 2, Clause 2 of the Constitution, merely by calling an international deal an "agreement" instead of a "treaty." This often happens with commercial treaties, but the language of the Constitution is clear, and the intent of the framers is also clear; as Roger Sherman publicly explained prior to ratification, "It is provided by the Constitution that no commercial treaty shall be made by the President without the consent of two-thirds of the Senators present." A majority of the Supreme Court, including Joseph Story, explained in 1840 that "agreements" have a short duration whereas "treaties" need not have a short duration.
If an international deal says that the U.S. can get out of its commercial obligations whenever we want, on six months' notice without any penalty, then the deal is not necessarily a treaty, but if we're stuck with the deal for thirty years then it most certainly is a treaty. Where would Roberts draw the line, and does he even believe that such a line exists for commercial treaties? I hope Senators express concern that the courts seem to be on the verge of letting the President get away with calling any deal an "agreement" instead of a "treaty," in order to circument Article II, Section 2, Clause 2, if the deal has the slightest relation to commerce. Roberts himself knows a great deal about this subject, having helped Chief Justice Rehnquist draft the Court's opinion in Dames and Moore v. Regan.
Of course, the fourth topic that I'll be listening for during the Roberts hearings is what he says (if anything) about abortion. I've said my share on that topic.
Posted in Analysis and Predictions —
Posted at 10:25am on Sep. 10, 2005 Hearing Schedule
By Marshall Manson
The Senate Judiciary Committee has released a more particular schedule for next week's hearing. Here it is:
Tentative Schedule for the Hearing:
*Schedule is subject to change*
Monday, Sept. 12
Noon Chairman Specter opens hearing, including various housekeeping matters
12:15 pm Chairman Specter begins 10 minute opening statements for Committee members
3:15 pm Break
3:45 pm Senators Warner, Lugar, and Bayh introduce John Roberts
4:00 pm Swearing-in and 15 minute testimony of John Roberts
Tuesday, Sept. 13
9:30 am Chairman Specter begins 30 minute round of questioning (Round 1)
1:00 pm Break for lunch
2:00 pm Resume questioning
6:00 pm Break for dinner
7:00 pm Resume questioning
8:30 pm Round 1 questioning ends
Wednesday, Sept. 14
9:30 am Chairman Specter begins 20 minute rounds of questioning (Round 2)
1:00 pm Break for lunch
2:00 pm Resume questioning as necessary
At the conclusion of questioning, the Committee is expected to go into closed session.
Thursday, Sept. 15
9:30 am Outside witness testimony with first 3 panels
1:00 pm Break for lunch
2:00 pm Resume testimony with last 3 panels
5:30 pm Conclusion of the hearing
Posted in Judiciary Committee —
Posted at 10:13am on Sep. 10, 2005 Estrada Back in the Mix
By Marshall Manson
A quick aside from the prep for the Roberts confirmation hearing: Patterico and JP both have lengthy posts making the case for Miguel Estrada to be appointed into the currently vacant Associate Justice seat. They both make great points.
I just want to add that for my own part, Estrada would be an outstanding selection. His resume makes him one of the very few candidates on the short list whose qualifications are on par with Judge Roberts. He is unquestionably cut from the mold of Scalia and Thomas. And after the way he was treated by the Senate in the past, it would be a joy to go to battle for him. If Estrada is willing, he's be an excellent pick.
Ready? Discuss...
Posted in SCOTUS —
Posted at 9:59am on Sep. 10, 2005 News Clips, Sat. 9/10
By Marshall Manson
Another day of light news volume. Several key stories obviously pushed by those who favor a Gonzalez nomination. That's too bad. Now is the time to keep our eye on the ball. Next week will be a big week.
Roberts as Chief Justice: Not Just One Vote out of Nine
Tony Mauro, Legal Times
Much at Stake for Democrats in Confirmation Hearings
Maura Reynolds, Los Angeles Times
Court confirmation to be historic event
Stephen Henderson, Knight Ridder Newspapers
Roberts Meets Three Senators and Gets a Nod From One
Sheryl Gay Stohlberg, New York Times
Gonzales Again Emerges As Court Contender
Mark Sherman, Associated Press
Gonzales Is Defended As Suitable for Court
Jo Becker and Dan Eggen, Washington Post
O'Connor Mum on Rehnquist and Roberts
Associated Press
Laura Bush says hopes for woman as next court pick
Reuters
Coach speaks against Supreme Court nominee
Associated Press
Salazar sees a leader in Roberts
Anne Mulkern, Denver Post
Posted in News —
Posted at 10:11pm on Sep. 9, 2005 Civil Rights Hypocrites
By Carol Platt Liebau
MoveOn.org has denied credible reports that they intended to use images of Hurricane Katrina victims in ads to run in opposition to the Supreme Court nomination of John Roberts. It's reasonable to suspect that MoveOn did intend to use the ploy, and then reversed course at the last minute.
In fact, the left generally seems to have fallen upon the strategy of simply trying to claim that Republicans "don't care" about African-Americans. This theory is bolstered by indications that the Democrats have decided to try to turn the Roberts hearings into a sort of "civil rights" tutorial -- with the implicit accusation that both the nominee (and the Republicans) are insufficiently concerned with "civil rights" as defined by them (after all, no one on the left seems concerned about the civil right to pray in public, or similiar matters).
According to this piece, the Democrats are going call as witnesses at the Roberts hearing the following people: A male coach whose suit for gender discrimination was upheld when he was fired for complaining about mistreatment of a girls' sports team and Rep. John Lewis, who was beaten during the Selma civil rights march.
Well, Republicans need to make it clear to the Democrats that they are not the ones who need the civil rights tutorial. After all, Abraham Lincoln was a Republican.
And, since a Supreme Court seat is at issue, it's worth noting that Chief Justice Edward Douglass White -- a member of the KKK -- was originally appointed to the Supreme Court by Grover Cleveland, a Democrat. And it was FDR -- hardly a Republican-- who nominated Hugo Black for the Court, the only other Justice to have been a member of the KKK.
The Civil Rights bills of the '60's were passed because of the masterful work of Senator Everett Dirksen (R-IL), and with Republicans voting in favor in much greater percentages than Democrats -- some of whom (Robert Byrd) led a filibuster, while others (Albert Gore, Sr.) steadfastly opposed the bill to the end.
And the Republicans have no former members of the KKK in their caucus -- much less as a former majority leader (paging Robert Byrd, D-W.VA).
So perhaps while the Democrats try to offer a tutorial to the Republican on Civil Rights, the Republicans should politely note that, given the Dems' history, it would be much more appropriate for them to be offering the civil rights lesson.
Posted in Judiciary Committee —
Posted at 9:07pm on Sep. 9, 2005 Viet Dinh and Karen Williams
By AndrewHyman
James Taranto over at Opinion Journal is touting Georgetown Law Professor Viet Dinh for the Supreme Court (Dinh previously served as Assistant Attorney General). Meanwhile, I've listed some more links about Fourth Circuit Judge Karen Williams, over at the right side of the confirmthem home page; check out the links, because she's a very impressive candidate.
UPDATE: First Lady Laura Bush had some interesting comments today on this subject, and she hopes for a female nominee. According to Ryan's poll, the leading female candidates are Jones, Brown, and Owen.
Posted in News —
Posted at 3:04pm on Sep. 9, 2005 Welcome to the Neighborhood
By Marshall Manson
There's a new Supreme Court nomination blog on the block. This one is sponsored by the Center for Jewish Values. Check it out here: http://jewdicious.blogspot.com/
Good luck, guys.
Posted in Roberts —
Posted at 2:27pm on Sep. 9, 2005 An Interesting Idea . . .
By Carol Platt Liebau
In a post below, one of the most interesting proposed nominees for the O'Connor seat is Judge Douglas Ginsburg. A brilliant jurist with an antitrust background, his first nomination to the Court by President Ronald Reagan was scuttled when one of his former Harvard Law School colleagues reported that he had smoked marijuana a few times back in the '60's and '70's (those concerns seem quaintly anachronistic now, don't they?).
Judge Ginsburg has served as chief judge of the D.C. Circuit since 2001, with great success, by all accounts. It's an idea worth at least some consideration. Any chance that he's the one in the post below whose name hasn't been "widely mentioned"? Mightn't the President have a fair amount of compassion for and understanding of "youthful indiscretions"?
Posted in SCOTUS —
Posted at 10:21am on Sep. 9, 2005 No On Gonzales, But Who?
By Erick
“Estrada is possible, but not probable.”
This is not from the White House. I'll put that out there first. But, what I'm told is a reaffirmation of earlier reports -- Gonzales is not going to be the pick. The caveat as always is that "POTUS is POTUS." He will do as he wants.
Here, however is what we know we know. The White House (Rove & Co.) attribute much electoral success to conservative energy focused on the court situation. Appointing a moderate or perceived moderate like Gonzales (moderate) or Clement (perceived moderate) would undermine the base and hurt support going into 2006.
We also know that the President does not bow to pressure. While there is lots of pressure for him to appoint a woman, he had the same pressure going into the O'Connor pick the first time; yet, the President went with John Roberts. While the odds are perhaps increased that he will go with a female or minority, those odds are not certain.
What I'm told this afternoon is that the President is leaning towards a particular pick, but has not made up his mind. The vetting process continues. The White House is also weighing its options regarding the pick as to whether it should wait until John Roberts gets on the bench or run two simultaneously. There is a growing sense that it would be politically more effective to have both going at once. Democrats can be expected to hurl the same charges at both, the effectiveness of which would be diminished if they were confronted with two picks at once.
I'm told not to pin hopes or fears on Gonzales or Clement or even Janice Rogers Brown. But, I have also been told not to write off Luttig. Jones is a possibility, but not a probability right now. I'm also told that Corrigan's name is being floated intentionally.
Lastly, several conservative groups are pressuring the White House to look again at Miguel Estrada. Estrada, who withdrew him name and saw his wife die in 2004, had at one time expressed an absolute desire to never be considered again. Sources tell me that in the past few months, Estrada has hinted that he changed his mind and that individuals assisting in the vetting process are aware of this.
Estrada would be an interesting pick. Easily ignored by the press during his nomination for the D.C. Circuit where he was one of many blocked circuit court nominees, a high profile nomination to the Supreme Court would be hard to ignore -- particularly the nomination of the first Latino justice. It would rally the conservative base and help move the Latino vote. Nonetheless, like Jones, I'm told Estrada is possible, but not probable.
What we know we know is that the President's mind is mostly made up, but the White House is closely guarding both the timing and the name. Says a friend near the scene, "Don't be surprised if it is someone whose name has not been widely mentioned."
Posted in SCOTUS —
Posted at 9:55am on Sep. 9, 2005 Left Wants to Turn Katrina Against Roberts
By Marshall Manson
Yesterday morning, USA Today reported that MoveOn.org would use footage of the Hurricane Katrina disaster in ads attacking Judge John Roberts. The backlash was so instant and overwhelming that MoveOn disavowed the whole idea and cut the legs out from under its spokesman. (More in this morning's USA Today here.)
Late yesterday, however, someone drew our attention to this article in the Boston Globe, which actually ran on Wednesday -- the day before the incriminating USA Today article.
Here's the lede:
Senate Democrats said yesterday that they will invoke the vast disparities in income and living conditions laid bare by the Hurricane Katrina disaster to sharpen their questioning of Supreme Court nominee John G. Roberts Jr. at his confirmation hearings next week.
More below the fold...
Senator Patrick J. Leahy of Vermont, the ranking Democrat on the Judiciary Committee, said he, too, will pursue questions raised by Katrina in the Roberts hearings. In addition, civil rights leaders whom Democrats have called to appear at the hearings said they also intend to refer to the scenes from the hurricane-ravaged region.
[snip]
Leahy said he watched the scenes of hardship on television with a growing sense of anger over the inability to deliver services to those who depend most on the government, issues he said would come up during the Roberts hearings.
"We'll have legitimate questions as to the authority of the federal government the central authority of the government but also the ability of individuals to seek redress if they don't get the help that they expect," Leahy said.
Put the two stories together, and the facts are clear: the Left wants to use Katrina to score political points against a distinguished nominee to the Supreme Court. Hard to believe that I said earlier I didn't think they could sink any lower.
In response, this morning, the Center for Individual Freedom put out a statement of its own:
FOR IMMEDIATE RELEASE
September 9, 2005
CFIF: Leftââ‚â„¢s Attempt to Use Hurricane Katrina Against Roberts is ââ‚ËœDespicable,ââ‚â„¢ ââ‚ËœPatheticââ‚â„¢
Statement of Jeff Mazzella, President of the Center for Individual Freedom
Alexandria, VA ââ‚• According to the Boston Globe, several prominent Democrats and liberal leaders are attempting to use the disaster caused by Hurricane Katrina as a tool to express their doubts about Judge John Robertsââ‚â„¢ record on civil rights issues. In response, CFIF President Jeff Mazzella made the following statement:
ââ‚Å“The on-going effort to use this catastrophe for political gain is despicable and a pathetic new low in the Leftââ‚â„¢s desperate attempt to torpedo Judge Robertsââ‚â„¢ confirmation.
ââ‚Å“Itââ‚â„¢s hard to imagine anything more tasteless or disgusting than invoking the misery and despair of hurricane victims in an effort to score political points.
ââ‚Å“But even the most inflammatory rhetoric canââ‚â„¢t disguise the emptiness of these outrageous attacks on Judge Roberts, a respected jurist and brilliant attorney who will make an outstanding Chief Justice.
ââ‚Å“With each over-the-top attack, groups like NARAL and MoveOn and liberal Senators like Patrick Leahy ensure their own failure, destroy their own credibility, and render themselves irrelevant in the political arena.ââ‚?
If you share my outrage over this, now's the time for your Senators to hear from you.
Posted in News —
Posted at 9:43am on Sep. 9, 2005 News Clips, Fri. 9/9
By Marshall Manson
Volume of stories definitely down this morning. Call it the calm before the storm.
MoveOn.org says it won't use evacuees in Roberts ad
Mark Memmott, USA Today
Senate Democrats Are Shifting Focus From Roberts to Other Seat
David Kirkpatrick, New York Times
Dems Want Input on O'Connor Replacement
Jesse Holland, Associated Press
Erik Brady, USA TODAY
Ahead of Roberts Hearing, Republicans Strategize
Brian McGuire, New York Sun
Commentary: What a Hispanic justice would mean
Raul Reyes, USA Today
Commentary: Unfinished counterrevolution
Terrence Jeffrey, Washington Times
VU professor to testify at Supreme Court hearing
Michael Cass, The Tennessean
Posted in News —
Posted at 11:58pm on Sep. 8, 2005 Why Wait?
By AndrewHyman
Look into the blogosphere's crystal ball and see what will transpire next week at the Roberts confirmation hearings. Or, take a look back in time, to the hours preceding the nomination of Judge Roberts for Chief Justice.
Hat Tip: Patterico.
Posted in Humor —
Posted at 1:12pm on Sep. 8, 2005 Reason for Optimism
By Carol Platt Liebau
Writing in The Weekly Standard, Bill Kristol worries that President Bush may settle for a woman or minority Supreme Court nominee who can't be counted on to move the Court in a constitutionalist direction.
Everyone, of course, shares his concern. But there's good reason to have confidence in the President. Everything he has done -- from urging the ouster of Saddam Hussein to trying to reform Social Security -- has indicated he's a person who intends to make his term matter. Note the quote from a Bush aide in this piece by Weekly Standard executive editor Fred Barnes: "The difference is between polls in the 40s and changing history and being in the 60s and twiddling your thumbs. We'll take the 40s. That's our motto."
Presumably, President Bush realizes that political tempests (a la federal response to Katrina) pass, but Supreme Court justices stay on the bench forever (or as close to it as mortals come). Happily, he's also in his second term.
So as long as his personal affection for Alberto Gonzales doesn't get in the way, there's every reason for optimism.
Posted in SCOTUS —
Posted at 12:05pm on Sep. 8, 2005 Nominate a Nominee
By AndrewHyman
Do you know of someone who would be a good nominee for the Supreme Court, who we haven't mentioned? Please email us with a serious, detailed explanation. confirmthem@gmail.com.
P.S. The President's eulogy yesterday for Chief Justice Rehnquist is available here.
UPDATE: FYI, the suggestions received so far include Senator David Vitter (smart and conservative but his seat would be filled by a Democratic Governor), Judge Allyson Duncan, Judge Steven Colloton, Professor Jack Goldsmith, Mr. Jay Sekulow, Senator Jeff Sessions, Professor Gerard Bradley, Texas Attorney General Gregg Abbott, and Judge Douglas Ginsburg (I'm only taking one suggested nominee per person and no nominations after midnight). Info about each of the main contenders can be found linked at the right side of the confirmthem page. And, don't forget to take Ryan's poll.
Posted in SCOTUS —
Posted at 9:11am on Sep. 8, 2005 News, Thurs. 9/8
By Marshall Manson
Good morning. Today's news clips follow. Make sure to check out the very first story... The Left is at it again with their deceptive, shameful ads.
And note that in the second story, the Washington Post was fed documents by a source opposed to Roberts' confirmation. Things are heating up...
Group's TV ad uses storm's aftermath to target Roberts
Mark Memmott, USA Today
Work on Rights Might Illuminate Roberts's Views
Jo Becker, Washington Post
Democrats Again Request Roberts Papers
Maura Reynolds, Los Angeles Times
Senate Democrats Pushing for Roberts's Legal Memos
Sheryl Gay Stohlberg and Richard Stevenson, New York Times
Democrats Face Dilemma as Bush Weighs Second High Court Choice
Bloomberg News
The Judiciary Committee's Star Turn
T.R. Goldman, Legal Times
Analysis: Next Nominee for High Court Could Be Tough Test for Bush
Ron Browstein, Los Angeles Times
Bush Choice on Nominee 2 Not Expected Soon
Deb Riechmann, Associated Press
Commentary: Procedure, precedent and giving the devil his due
Laura Hirschfeld Hollis, Townhall.com
Salazar will urge Roberts to foster unity on court
Jim Hughes, Denver Post
Martinez hopes Bush chooses Hispanic for high court
Larry Lipman, Palm Beach Post
Commentary: A Bigger Test Than Roberts
David Broder, Washington Post
Business frugal in Roberts support
Elana Schor, The Hill
Commentary: The Contenders
Manuel Miranda, Opinion Journal
Posted in News —
Posted at 1:38am on Sep. 8, 2005 Poll: Whom Should the President Nominate?
By Ryan K
Time to take the pulse of blog readers. Whom should the President nominate as the next Justice?
To learn more about the candidates, use the links in right column or enter a name in the search box above.
Posted in SCOTUS —
Posted at 12:13am on Sep. 8, 2005 Let's Get Tenuous
By Pejman Yousefzadeh
Honestly.
What? You doubt the clear connection between Supreme Court jurisprudence and whether you are able to escape the breaking of a levee? How very misguided of you.
Posted in Uncategorized —
Posted at 4:23pm on Sep. 7, 2005 More Questions about Questions
By Marshall Manson
My friend and colleague Reid Cox has an excellent op/ed over at the Center for Individual Freedom. It's Reid's take on the question of questions for Judge Roberts at next week's hearing.
Here's the heart of the matter:
Judges canââ‚â„¢t and shouldnââ‚â„¢t make law when they personally believe a particular duly enacted law or constitutionally ratified provision is ââ‚Å“undesirable.ââ‚? Unelected and unaccountable judges are bound by the Constitution and laws just like the rest of us. If they werenââ‚â„¢t how could ours continue to be a ââ‚Å“government of the people, by the people, for the peopleââ‚??
That doesnââ‚â„¢t mean thereââ‚â„¢s nothing the Senators should ask Judge Roberts. It just means they should be asking whether he understands that ââ‚Å“We the Peopleââ‚? have chosen someone else to do our lawmaking.
And if you'd like to read my own much longer and more historically focused take on the same issue, check out this earlier post.
Posted in Judiciary Committee —
Posted at 1:26pm on Sep. 7, 2005 First Consideration: Philosophy, Not Gender
By Carol Platt Liebau
In this piece from the AP, Senators Specter and Hutchison -- Republicans both -- call on the President to name a woman to fill Sandra Day O'Connor's newly re-opened seat.
Don't get me wrong: There are plenty of fine women out there, including Judge Priscilla Owen of the Fifth Circuit, Judge Janice Rogers Brown of the D.C. Circuit, and my personal favorite, Judge Edith Jones of the Fifth Circuit. Any of those three would be a fine choice.
But it's a pretty sad commentary on how priorities have degenerated when senators are more concerned about the nominee's biology than his or her jurisprudence. First, the President should choose a constitutionalist of unquestioned integrity. Then, let's worry about gender, race and all the rest.
Posted in Uncategorized —
Posted at 11:45am on Sep. 7, 2005 Kennedy Warns Against Stinginess
By AndrewHyman
The Washington Post quotes the Senator from Massachusetts:
"What the American people have seen is this incredible disparity in which those people who had cars and money got out [of New Orleans] and those people who were impoverished died," Sen. Edward M. Kennedy (D-Mass.) said in an interview . The question for Roberts, he said, is whether he stands for "a fairer, more just nation" or for "narrow, STINGY interpretations of the law to frustrate progress."
So, Judge Ebenezer John Roberts, youââ‚â„¢d better be willing to lard up the Constitution with lots of fundamental rights that the stingy framers never imagined or intended or authorized, and that a majority of stingy elected representatives oppose. Judge Roberts, youââ‚â„¢d better support a citizenââ‚â„¢s fundamental constitutional right to receive a free automobile and free money if the citizen lives in a flood plain. And, Judge Roberts, youââ‚â„¢d better be able to explain why you didn't advise the Democratic Governor of Louisiana to commandeer every school bus in Louisiana to help evacuate New Orleans.
Seriously, Instapundit has a great list of ways to help with Hurricane Katrina relief.
Posted in News —
Posted at 9:39am on Sep. 7, 2005 News Clips -- Wednesday, 9/7
By Marshall Manson
Make sure to check out Bob Novak's column below the fold.
Senate sets date for Roberts confirmation hearings
Charles Hurt, Washington Times
Bush Pledges Wide Search for Court Seat
Peter Baker and Jo Becker, Washington Post
Gonzales Is Mentioned in Supreme Court Remarks
Richard Stevenson and Sheryl Gay Stohlberg, New York Times
Bush: List for Second Vacancy 'Wide Open'
Jesse Holland, Associated Press
Bush Urges Senators to Focus on Roberts, Not Next Nominee
Maura Reynolds, Los Angeles Times
Bush hints at Gonzales for court opening
Bill Sammon, Washington Times
Bush Likely to Choose a Woman or Minority for Court
Bloomberg News
Commentary: Bush secretly decided weeks ago on simplest solution
Robert Novak, Chicago Sun Times
Specter Asks; Roberts Answers, for the Most Part
Charles Babington, Washington Post
Senate expands focus of questions for Roberts as chief justice
James Kuhnhenn, Knight Ridder Newspapers
Roberts To Face 'Piercing Questions'
Brian McGuire, New York Sun
Nominee's stance less clear on key issues
Joan Biskupic, USA Today
Commentary: Snatching Defeat from the Jaws of Victory?
Bill Kristol, Weekly Standard
Alex Bolton, The Hill
Will Roberts Choose Candor or Silence Before Senate?
Tony Mauro, Legal Times
Roberts, Rehnquist compel comparisons
Joan Biskupic, USA Today
Former Rehnquist Clerks Recall His Wit, Warmth
David Savage, Los Angeles Times
Editorial: Judging Roberts
The Hill
Commentary: Supreme Opportunity
Cal Thomas, Washington Times
Commentary: Look for judicial restraint in Supreme Court nominee
Senator Charles Grassley, Des Moines Register
Posted in News —
Posted at 12:17am on Sep. 7, 2005 More Corrigan Links
By AndrewHyman
Novak reports:
The three leading candidates as a conservative woman to replace O'Connor are Appeals Judge Priscilla Owen of Austin, Texas, confirmed this year after a long struggle; Appeals Judge Edith Jones of Houston, whose name has been mentioned for high court vacancies for nearly 20 years, and a new name, Michigan Supreme Court Justice Maura Corrigan.
I've inserted a few more Corrigan links over at the right-hand-side of the confirmthem home page, in allcaps, under the category "SCOTUS Candidates." Evidently, she lives in Grosse Pointe, but I'll refrain from John Cusack comments.
Posted in SCOTUS —
Posted at 11:42pm on Sep. 6, 2005 The Roberts Confirmation And Privilege
By Pejman Yousefzadeh
With John Roberts's nomination now for the position of Chief Justice, you can expect that there will be a great deal more demand for documents he wrote as a young lawyer in both the Office of the White House Counsel and in the Office of the Solicitor General. Which means, it is time for us to review the rules on privilege.
Posted in Uncategorized —
Posted at 9:29pm on Sep. 6, 2005 From the <em>Washington Post</em>
By AndrewHyman
Posted in SCOTUS —
Posted at 8:52pm on Sep. 6, 2005 Ages of Chief Justices
By AndrewHyman
The ages of the Chief Justices when they took office were as follows:
44 John Jay
56 John Rutledge
51 Oliver Ellsworth
46 John Marshall
59 Roger Brooke Taney
56 Salmon Portland Chase
58 Morrison R. Waite
55 Melville Weston Fuller
65 Edward Douglas White
64 William Howard Taft
68 Charles Evans Hughes
69 Harlan Fiske Stone
56 Fred M. Vinson
62 Earl Warren
62 Warren E. Burger
62 William H. Rehnquist
Note that we have another post listing the ages of some present-day SCOTUS candidates, and still another post describing the ages of SCOTUS nominees in the past. Not that age matters, of course.
Posted in SCOTUS —
Posted at 7:20pm on Sep. 6, 2005 It's Wide Open
By AndrewHyman
President Bush says, "The list is wide open, which should create some good speculation here in Washington." And on the internet too, I'd guess. By the way, Bill Kristol has an excellent piece in the Weekly Standard:
One understands the attraction of Roberts as chief. But with this action, in one fell swoop, the president deprived himself and his supporters of the easiest argument for his next nominee: that surely a reelected conservative president is entitled to replace a conservative justice --- Rehnquist --- with another conservative. So now everything rides on Bush's nerve. Is he willing to fill the O'Connor seat with a conservative, and can he then make an effective case for that nominee to the Senate and the country?
Here's hoping so.
Posted in News —
Posted at 6:57pm on Sep. 6, 2005 Rotunda Op-Ed on Ethics
By Marshall Manson
With things so busy today, I simply forgot to post on Prof. Ronald Rotunda's excellent op-ed in today's Washington Post about the Dems' attacks on Judge Roberts ethics. It's a great summary of his letter that I posted about last week. It's also a concise destruction of the Left's attempt to call Judge Roberts' ethical judgement into question.
Posted in Roberts —
Posted at 4:46pm on Sep. 6, 2005 Events Today at the Supreme Court
By AndrewHyman
Click on image for more.
Posted in News —
Posted at 2:52pm on Sep. 6, 2005 Judicial Selection Analysis
By Marshall Manson
An anonymous commenter posted an interesting bit of analysis in one of the other threads that I thought I would promote. I must say that I do not agree with various portions. Most particularly, I do not think that Estrada is in the running. His previous pass through the confirmation ringer was (unfortunately) much too hard on him and his family. Other than that, I will let this analysis stand without further comment here.
We need to start our thinking with the ââ‚Ëœlast roundââ‚â„¢, since in so doing we might be able to reconstruct the Presidentââ‚â„¢s thinking then, replicate it now, and more ably predict the pick:
This is what we know:
1) Last time around, the President was filling the Oââ‚â„¢Connor seat, with the prospect of Rehnquistââ‚â„¢s retirement imminent. In other words: he knew that he would get a chance to replace a conservative white male (CWM) later. Roberts was clearly in consideration for Chief already then. Wilkinson and Luttig, among other CWMs, were also available for CJ. If ever, then, there
was a moment to go for a diversity pick -ââ‚“woman, Hispanic, blackââ‚“- this was it. The First Lady wanted him to name a woman. Oââ‚â„¢Connor wanted him to name a woman. Roberts could safely have been nominated for CJ later.
But Bush did not make that choice. He bowed not to diversity, but gave us a CWM. This suggests that Bush simply nominated the best person he met in the selection process. The women, then, were beaten, on quality, by Roberts (and possibly other men). There is no reason to think that Bush will approach matters differently now: experience, at least, suggests that he will pick a minority or a woman only if he believes that such person is better suited than the qualified CWMs also in the running.
2) We also know for sure that, in addition to Roberts, the President interviewed four people, two of those being Joy Clement and Harvie Wilkinson. We now hear from Erick that Joy Clement is out of the running, which seems plausible. Clement has no paper record whatsoever to suggest she is an originalist and her academic and other judicial credentials are not strikingly impressive.
Wilkinson was the only one who gave the press an account of his interview with the President. We also know from his interview with the New York Times that the President asked Wilkinson about his exercise habits (obvious question since he, at 61, was the oldest candidate under consideration) and that the President was dissatisfied with Wilkinsonââ‚â„¢s answer.
The other two have not spoken publicly about their interview. (Republican sources at the time indicated the other two interviewees were Michael Luttig and Edith Jones).
Bush, as every attentive reader of newspapers knows, is obsessed with maintaining secrecy, not leaking to the press, promoting personal loyalty to him etc. The surest way of killing off oneââ‚â„¢s chances at the 2nd nomination would be to blab to the media about your first interview without prior permission. This suggests to me that, like Joy Clement, Wilkinson was told by the White House that he was no longer being considered for future vacancies, most likely due to his age. Thatââ‚â„¢s why Wilkinson felt free to
speak to the press about it. QED: Wilkinson is out of the running.
3) This leaves us with Michael Luttig and Edith Jones, plus any candidates that the President would not have to interviewed since he knows them so well. Of all the plausible candidates only Gonzales and Priscilla Owen (an old Rove/Texas contactââ‚“Bush used to socialize with Owen in her house) fit that bill, and probably also John Cornyn (TX) and Larry Thompson (former Deputy AG).
This leads us to the deduction that Emilio Garza, Samuel Alito, Michael McConnell and Miguel Estrada were not among the serious candidates the last time. (Janice Rogers Brown is obviously not a candidate; people who suggest this in earnest understand nothing of Washington DC. It's a miracle that she was ever nominated for the DC Circuit).
If we handicap those who clearly finished close to the top in the last round we see the following:
4) Edith Jones is a very outspoken conservative and has been publicly very critical of Roe v Wade. Despite her qualifications and gender, that makes her confirmation chances in the current political climate questionable.
5) According to Erickââ‚â„¢s information, Luttig didnââ‚â„¢t make a particularly favorable impression on the President in the first round, not due to his qualifications (they are extremely impressive), but due to his personality. (Although we have no other sources for this, it would explain why Luttig was passed over for Roberts twice already, first for the O'Connor seat, now for the CJ seat, despite Luttigââ‚â„¢s much longer experience as a federal judge and generally extremely impressive credentials). But it was indicated to Erick that Luttig would be getting a second look now.
That exhausts the original five. Perhaps itââ‚â„¢s true that Bush is expanding his list. If so, let's handicap the others, beginning with those who Bush knows well and might therefore have been competitive last time around without us knowing it:
6) Priscilla Owen does not have the stellar resume and academic achievement that have propelled Roberts. She could be seen as a Bush/TX crony, which the press wonââ‚â„¢t like and she was very controversial when nominated for the Fifth Circuit (and was only confirmed as part of the Filibuster Deal, which may cut both ways). Itââ‚â„¢s therefore unlikely she would be nominated despite her gender. Itââ‚â„¢s unclear what, other than age, favorably contrasts her with Edith Jones, who herself, as indicated, is probably too outspokenly conservative to be confirmed.
7) Larry Thompson is reportedly in the Presidentââ‚â„¢s favor. He is a friend of Clarence Thomas and his personal background would provide for a compelling story. His age (59), though, counts against him. As previous Deputy AG he would have to recuse himself from several cases of crucial importance to the Bush administration. He does not have any experience as a judge. His current job (General Counsel for Pepsi Co), although impressive, is the kind of corporate connection that doesnââ‚â„¢t help. His resume doesnââ‚â„¢t seem to set him apart from more obvious candidates.
Then those who certainly didn't make the short list last time:
8) Emilio Garza is a bachelor. Although Hispanic, Texan and a respected conservative federal judge, he is on the older side and has made it abundantly clear he would overturn Roe v Wade. This alone makes it virtually impossible to nominate him in the current climate, since it would probably make him unconfirmable or at least a probable victim of an attempted filibuster.
9) Michael McConnell gets very high marks for his academic credentials although his experience as a federal judge is limited. He would get substantial bipartisan support, paradoxically leading to suspicions among hard-core conservatives. Very extensive public record of writings to quote against him in hearings. McConnell criticized important aspects of Bush v. Gore. He has public opposition on record to Roe v. Wade. His academic persona probably doesnââ‚â„¢t ââ‚Ëœjibeââ‚â„¢ well with Bush. In combination with his dislike of Roe v. Wade, this makes it surprising for McConnell to emerge. Nonetheless, given his stellar credentials and bipartisan support, he is a dark horse not to be discounted.
10) Samuel Alito has been mentioned very little. Despite his obvious credentials, this is probably because he is the author of a widely noted dissent indicating his willingess to overturn Roe v Wade. In the bizarre world of Washington DC, you can think it but you canââ‚â„¢t have said it publicly if you want to get confirmed.
11) Ignoring dark horse candidates like Senators Cornyn and Brownback and other outside possibilities, the only remaining plausible candidate is Miguel Estrada. He is young (44) and, because of the Democratic filibuster, has no judicial experience. But neither did William Rehnquist, Louis Brandeis, Lewis Powell, Earl Warren, Byron White, Robert Jackson, William Douglas, Felix Frankfurter, and Hugo Black when they were nominated to the Court. Estrada has a compelling immigrantââ‚â„¢s story (although he didnââ‚â„¢t come from a poor background), has impeccable and impressive academic credentials, is a regular practitioner before the Court (argued 15 cases), former Assistant to the Sollictor General, Kennedy clerk. And, despite his strong conservative views, no paper record to hurt him. Estrada was obviously being groomed by the Bush people for the Supreme Court when he was nominated for the DC Circuit, but, frustrated with the process, withdrew his nomination before the Filibuster Deal (which would have let him through). Given what happened before, Estrada is a risky choice, but there were sufficient Republican votes to confirm him for the DC Circuit and once on the Court he would be there forever. No wonder the Democrats filibustered him.
In sum: weighing everything, I think that the only woman who is seriously on the table is Edith Jones and her conservatism is so outspoken that it becomes very unlikely that she could be nominated. The nominee will most probably, therefore, not be a woman.
Among CWMs, Luttig is the obvious candidate (his background is in many ways very similar to Roberts, whose personal friend he is), with Cornyn and McConnell as dark horses.
Among 'minority males' I think that Estrada is, perhaps surprisingly, the best choice.
If Erick at RedState.org wouldnââ‚â„¢t have reported that the President didnââ‚â„¢t particularly like Luttigââ‚â„¢s personality, I would bet Luttig would be the One. If the President is willing to be bold, Estrada would be an enticing and for conservatives most exciting choice. Cornyn might suddenly pop out of the box.
But, given all the negative arguments plausibly possible against so many nominees, there is a strong case to be made that Bush is tempted to fall back on Gonzales (despite conservative opposition it's unlikely that the Senate Democrats would seriously try to block him), so we must pray that Erick is correct in reporting that he has taken himself out of the running.
UPDATE: We have heard from the original poster, who wishes to remain anonymous, but wanted to provide a version edited for a few typos and mistakes. I have updated the original post to reflect those edits.
Posted in Analysis and Predictions —
Posted at 2:34pm on Sep. 6, 2005 Schumer
By Marshall Manson
John over at johnincarolina has a good post linking to a great op/ed about Sen. Schumer. As he always does, Justice Scalia seems to cut right to the heart of the discussion, in this case skewering Schumer's call for "moderate" judges:
Speaking in California last week, according to The Associated Press, Supreme Court Justice Antonin Scalia made an excellent point: "Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?"
Posted in Judiciary Committee —
Posted at 1:49pm on Sep. 6, 2005 Dellinger is Mistaken About Rehnquist
By AndrewHyman
Former U.S. Solicitor General Walter Dellinger had a piece in Slate on September 4 titled "In Memoriam: William H. Rehnquist, the Man Who Devised the Natural Law of Federalism." Mr. Dellinger is crassly taking the opportunity of Chief Justice Rehnquist's death to claim that Rehnquist resorted to natural law in the absence of constitutional text, just like liberal justices have done. The only problem is that Mr. Dellinger is wrong.
Dellinger writes:
When serving as the court's most junior justice, he boldly authored a dramatic dissenting opinion in an otherwise routine case called Fry v. United States, a dissent joined by no other member of the court. In his first articulation of his theory of state sovereignty, he frankly stated that his position rested on "no explicit constitutional source" but rather on a "right inherent in [Ohio's] capacity as a State." As my Duke colleague Jefferson Powell noted in 1982, Rehnquist was "neither a strict constructionist nor a practitioner of judicial restraint." He sought, in Fry, to create a natural law of federalism, and over his lifetime, he essentially succeeded. The lonely position he took in 1973 had, by the end of his chief justiceship, become the law of the land.
First of all, if you take a look at the Fry case, you'll see that Rehnquist actually wrote as follows: "In this case, as well as in Wirtz and United States v. California, the State is not simply asserting an absence of congressional legislative authority, but rather is asserting an affirmative constitutional right, inherent in its capacity as a State, to be free from such congressionally asserted authority." Rehnquist was saying what the state was asserting as opposed to what he was asserting (although Rehnquist did take a similar position in that case). More importantly, when Rehnquist wrote that his position rested on "no explicit constitutional source," that obviously did not mean that it rested on no implied constitutional source. A jurist who acknowledges implied powers and implied rights is most definitely not the same thing as a person (like Mr. Dellinger) who would invoke natural law in the complete absence of any express or implied command of the written text.
In any event, regardless of what Chief Justice Rehnquist may have believed about "natural law" in 1973, he later said very clearly in 1980 that our constitutional system is "a system based on majority rule, and not on some more elitist or philosophical notion of 'natural law.'" See Government by Cliché (Transcript of address by William H. Rehnquist) 45 Missouri Law Review 379 (Summer 1980).
In the Court's federalism cases of the past few years, there has been no mention of, nor reliance upon, natural law. For example, hereââ‚â„¢s what the Court (including Rehnquist) said in Alden v. Maine about how the language of the Necessary and Proper Clause defeats congressional attempts to eliminate a stateââ‚â„¢s sovereign immunity:
Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powersâ₦ When a law for carrying into execution the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions, it is not a law proper for carrying into Execution the Commerce Clause.
So, when Congress tries to use the Commerce Clause to regulate a state government's core functions, Congress needs power over and above what is granted in the Commerce Clause alone, and thus Congress would have to resort to the Necessary and Proper Clause. Despite this clear textual basis for the Courtââ‚â„¢s sovereign immunity decisions, Mr. Dellinger incorrectly asserts that those decisions are based upon "natural law."
The great political philosopher John Locke wrote these words about "natural law":
[I]n the state of Nature there are many things wanting. First, there wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of Nature be plain and intelligible to all rational creatures; yet men being biassed by their interest... are not apt to allow of it as a law binding to them in the application of it to their particular cases. Secondly, in the state of Nature, there wants a known and indifferent judge, with authority to determine all differences according to the established law.
JOHN LOCKE, SECOND TREATISE ON GOVERNMENT (1689), §§ 123-125 (titled "Of the Ends of Political Society and Government"). Rehnquist agreed with Locke that "natural law" is not a legitimate basis for government action or judicial decision, absent clear written text. Mr. Dellinger is incorrect. IMHO.
UPDATE: Tony Mauro of Legal Times had a good article about the Fry case in 2003.
Posted in News —
Posted at 12:31pm on Sep. 6, 2005 Clement Out of the Running?
By Marshall Manson
Erick has a critically important update to his piece below.
Posted in Uncategorized —
Posted at 12:06pm on Sep. 6, 2005 Roberts hearings set.
By Marshall Manson
I've just heard from a friend in the Senate (and AP is reporting) that the Roberts hearings will begin next Monday, 9/12 at noon. At this point, other details are up in the air, but there's no reason to think that the general schedule won't be similar, if not the same, as what was planned originally for this week. That would mean opening statements on Monday followed by questionning and panels over the succeeding days. The Judiciary Committee would then hold its vote on Thurs., 9/22 and the Senate would have a week to consider the nomination and then vote on confirmation. Judge Roberts should still take his seat before the High Court's October Term begins.
Posted in SCOTUS —
Posted at 11:24am on Sep. 6, 2005 Supreme confirmation humor...
By Marshall Manson
Tom Humber, CFIF's Founder, has penned an hilarious piece of satire titled "John Roberts and the Third Amendment: Another Liberal Nightmare." It takes a hard look at the liberals' next line of attack against Judge Roberts.
Among other things, I think the piece demands further comments from distinguished Professors Volokh and Yoo. Come on, professors ... don't be shy...
Here's an excerpt:
A small but equally astute group of liberal activists has begun to surreptitiously e-mail liberal members of the Senate Judiciary Committee warning that Robertsââ‚â„¢ renowned powers of persuasion could sway highly suggestible liberal justices on an issue never before heard by the Supreme Court. Several memos have urged that weaker members of the Judiciary Committee not make eye contact with Roberts during the hearings, lest they become mesmerized by his Sphinx-like gaze.
A judicial nominee with no record (or even a demo tape) on an issue without Supreme Court precedent is considered by numerous liberal thought leaders to be a conservative smart bomb that could have devastating fallout on decades of liberal court rulings.
Thanks to Mike Krempasky for noticing.
Posted in SCOTUS —
Posted at 11:03am on Sep. 6, 2005 Must Read on Democrats' Plans for Questionning
By Marshall Manson
Alex Bolton has an absolute must-read in The Hill (a Capitol Hill newspaper). You can skip the first six grafs. They just review the hearing postponement news that's been covered elsewhere.
The story really begins in graf seven, where Bolton provides extraordinarily specific details about the Dems plans for questionning Roberts at his hearing. Disclaimer: This story was obviously written as a preview for the the hearing scheduled to begin today. The Dems could well change their plans given the delay. But the details in the Bolton story are critical intelligence.
Posted in News —
Posted at 10:54am on Sep. 6, 2005 Possible Nominees
By Marshall Manson
Many others have already speculated about who might be nominated to the Court now that Judge Roberts has been tapped to be Chief Justice. I don't have any particular inside knowledge, and Erick seems to be the one with all of the highly placed anonymous sources (though if anyone wants to send me a tip, feel free to e-mail me.) Nevertheless, I'll weigh in with a few thoughts and predictions:
(1) The President will wait until after the Roberts hearing is complete before making the next nomination, but it's unlikely he will wait until after the final Roberts confirmation vote at the end of the month. As we all learned with the original Roberts nomination, the outside vetting process (ABA, Judiciary Committee, etc.) takes a minimum of about four weeks. If the President wants the nominee to take his or her seat prior to Thanksgiving, that vetting process needs to begin sooner rather than later.
(2) While it's likely that the President will nominate a woman, it's not a certainty. This president has demonstrated repeatedly that his process for making key appointments is intensely personal. He has a demonstrated record of selecting the person he believes is best for the job, regardless of race, gender, or political consequences (see Bolton, John).
UPDATE: I was writing this post when Erick put up his post below. Again, I know he's got better sources, but I would bet big bucks that the White House does not wait until the final Roberts vote to make the other nomination. The time issue will simply become too pressing.
Posted in SCOTUS —
Posted at 10:44am on Sep. 6, 2005 Jones <strike>& Clement Are</strike> Is In Play<br>The White House Has Been Looking For Weeks
By Erick
Sources tell RedState that the White House is actively engaged in finding a replacement for Sandra Day O'Connor and has been engaged for several weeks.
It became clear about a month ago that Chief Justice Rehnquist, through either death or resignation, would not be returning to the Supreme Court this October. At that time, outside groups close to the White House began efforts to point the White House toward some previously considered and not fully considered choices.
Shortly thereafter, the White House Counsel's office again picked up the list of the previously considered to press forward.
Confirming yesterday's report, I'm told that Alberto Gonzales is not under consideration. In fact, Gonzales took himself out of the running during the first "draft" and has reiterated that he does not want to be considered. The White House is now turning its eyes toward several women, but the President is insistent that he wants the "best person" and is not prepared to make a "hurricane pick" or any other pick to satisfy particular groups. "There will be no affirmative action in the selection process," says one source.
Of the names being mentioned, Edith Jones tops the list. A conservative fantasy and liberal nightmare, Jones has a solid conservative record on the Fifth Circuit Court of Appeals and is on record chastising the line of cases flowing from Roe v. Wade. Also on the list is Joy Clement, not because she would be a "hurricane pick," but because she is now a known quantity at the White House, having made it into the top three last time.
Update [2005-9-6 11:29:27 by Erick]: Following up on a tip from an outside source, I was able to get through to a White House contact who tells me that "earlier reports notwithstanding, the White House is not considering Joy. She made the list last time and is not expected to this time. As she was told, the White House wants to go in a different direction."
With Jones, the question remains how much the White House is actively considering her. It is my feeling that she is more on the list because of outside conservative interests than any desire by the White House to fight that battle. "Jones would solidify the President's base, but we are unsure if we could keep 51 of our own in the Senate," said one of those on the outside who is helping in the effort. "We're doing the math and we're pretty sure, but not fully sure."
Also being pushed forward are Judges McConnell and Luttig. I'm told by a White House source that Luttig "did not leave a favorable impression in the last round, but it was more to do with personality than anything else."
What does seem sure is that, while the White House will not reveal its cards until the President is ready, the President does want to see John Roberts on the bench before naming O'Connor's replacement.
[editor's note, by Erick] This piece is not to say that the White House is not looking at Owens or others. I'm only reporting what I've been told, namely that (A) the White House has been looking for weeks, (B) Jones and Clement are is being considered, and (C) the President prefers to get Roberts on the bench first.
Posted in SCOTUS —
Posted at 10:30am on Sep. 6, 2005 Tuesday, 9/6 News Headlines
By Marshall Manson
This is not an exhuastive list, but I think it hits the high points of coverage from yesterday and today. Feel free to add more in the comments. (And remind me not to go away for a holiday ever again.)
William H. Rehnquist, Architect of Conservative Court, Dies at 80
Linda Greenhouse, New York Times
Bush Nominates Roberts as Chief Justice
Charles Lane, Washington Post
President Names Roberts as Choice for Chief Justice
Richard Stevenson, New York Times
Jan Crawford Greenburg, Chicago Tribune
Roberts Tapped for Chief Justice
David Savage and Henry Weinstein, Los Angeles Times
Roberts picked for chief justice
Bill Sammon, Washington Times
Editorial: The Roberts nomination
Chicago Tribune
Senate delays hearings for Roberts nomination
Charles Hurt, Washington Times
Roberts's Personal Skills and Political Savvy Seen as Assets
Charles Lane, Washington Post
A Court Choice Well Schooled in Chief Justice Job's Pitfalls
Linda Greenhouse, New York Times
Commentary: A model of judicial restraint, not activism
Ed Whelan, Los Angeles Times
Philosophy likely to evoke Rehnquist
Jan Crawford Greenburg, Chicago Tribune
Roberts' star rose as a lawyer under Reagan, Bush
Guy Taylor, Washington Times
Roberts Was Influenced by Critics of the Warren Court
Charles Lane, Washington Post
Editorial: A Nominee for Chief
Washington Post
O'Connor's Staying on Court May Carry Little Weight
David Savage, Los Angeles Times
Guy Taylor, Washington Times
Editorial: The Rehnquist Era
Washington Post
Editorial: Chief Justice Rehnquist
Washington Times
News Was Surprising to Colleagues on Court
Linda Greenhouse, New York Times
Commentary: Gentleman of the Court
Prof. Laurence Tribe, New York Times
Analysis: Court Moves May Give Bush Political High Ground
Ronald Brownstein, Los Angeles Times
Hill calls on heavyweight advisers in Supreme Court battle
Charles Hurt, Washington Times
Posted in SCOTUS —
Posted at 10:06pm on Sep. 5, 2005 Some Monday Night Confirmation News
By AndrewHyman
Associated Press reports that President Bush "is not expected to name a new O'Connor successor this week." But you never know.
The Hill reports that influential Democrats "are predicting that as many as 25 Democrats will vote to confirm John Roberts as chief justice of the United States." That sounds about right.
Hugh Hewitt says that "a Judge Luttig or a Judge Garza, or a Judge Jones would be worth fighting for." I'm with Hugh!
Time Magazine has this to say:
Who does Bush choose to take the O'Connor seat? Conservatives are taking aim once more at Attorney General Alberto Gonzales, who they believe might be too moderate. If Bush picks a woman, there's Judge Edith Clement of New Orleans who lost her home in Hurricane Katrina. Bush passed her over last time but her being a storm victim might now give her a certain elan. Priscilla Owen or Edith Jones, both circuit court judges, would please conservatives but would rally Democrats. One White House official says that there's close scrutiny of Larry Thompson, who served as Number two in the Ashcroft Justice department. As African-American, Thompson's nomination might help ease racial tensions in the wake of the New Orleans disaster. One concern among administration officials is the large number of cases that Thompson might have to recuse himself from because he participated in them at Justice.
Info about all of the leading SCOTUS candidates is linked over at the right-hand-side of the confirmthem home page, under the category "SCOTUS Candidates" (of course). Our info suggests that Attorney General Alberto Gonzales would indeed be much more valuable at DOJ than SCOTUS. Also, our sympathies go out to Judge Edith Clement of New Orleans who lost her home in Hurricane Katrina. But, I hope that President Bush will not nominate such a mystery, even if nominating a storm victim might have a certain "elan." Time Magazine is right that nominating Priscilla Owen or Edith Jones would please conservatives, and who cares if it rallies Democrats?
Finally, for now, Orin Kerr has a thoughtful analysis of the prospects for a Brown nomination, and here's a piece:
Will Bush Nominate Janice Rogers Brown?: A lot of people seem to think so, but on balance I find it less than likely. While Brown has a reputation as an "extreme conservative," it's more accurate to say that she is a hard core libertarian. A hard core libertarian is not likely to vote in a consistently conservative way, which I think makes it less likely that Bush will nominate her to the Supreme Court.
Todd Zywicki buttresses Orin's analysis.
Posted in News —
Posted at 8:31pm on Sep. 5, 2005 The Age Factor
By Ryan K
Ages of potential nominees:
note: the (-5) is a reminder that women have a 5 year greater life expectancy
Pryor: 43
Estrada: 43
Cantero: 45
Sykes: 47 (-5)
Brownback: 48
McConnell: 50
Luttig: 51
Owen: 51 (-5)
~~~~~~~~~~ Why go older (except for females)?
Cornyn: 53
Alito: 55
Kozinski: 55
Jones: 56 (-5)
Brown: 56 (-5)
Clement: 57 (-5)
Corrigan: 57 (-5)
Garza: 57
Thompson: 59
Wilkinson: 60
Boggs: 61
Batchelder: 61 (-5)
Kyl: 63
Olson: 64
Glendon: 67 (-5)
While a 6 year age difference between Owen and Clement may not seem like a big deal now, in Supreme Court years it is immensely long. It can be the difference between a Clinton appointee (Ginsberg) and a Bush appointee (Roberts), effecting landmark cases each year. Pryor and Thompson highlight this factor further with a whopping 16 year age difference. I hope age continues to be a significant consideration by the Administration, as was with 50-year-old Roberts.
With the breadth of young qualified candidates available, it's difficult to justify the age tradeoff with anyone older than Owen at 51-years-old, whose life expectancy is the equivalent to a 46-year-old male, and is on most conservative's top 3 list.
Posted in SCOTUS —
Posted at 7:18pm on Sep. 5, 2005 Just Predictable Teddy K
By Carol Platt Liebau
Once again, Teddy Kennedy is behaving ridiculously.
It was reported earlier today on CNN that he wants to know who Bush's second Supreme Court nominee will be before deciding whether to vote for John Roberts.
Two questions:
(1) What possible relevance is the second nominee to the question of John Roberts' qualifications to assume the post of Chief Justice?
(2) Is there anyone out there who thinks that Teddy's mind is open even a teeny little crack to considering a "yea" vote on the Roberts nomination?
Posted in SCOTUS —
Posted at 2:44pm on Sep. 5, 2005 Justice O'Connor's Plans
By AndrewHyman
Marty Lederman over at the Supreme Court Nomination Blog is pointing out that it's unclear whether Justice O'Connor will do what Justice Thurgood Marshall did. Marshall initially said he'd retire upon confirmation of a successor, but eventually he took the initiative to step down before Justice Thomas was confirmed.
If Justice O'Connor intends to step down before October 3, then it might make good sense for President Bush to appoint a recess nominee. He has until noon tomorrow to do so.
Whatever he does, let's please not have a Souter moment. Judge Clement may be more of an orginalist than Scalia or Thomas, but her record just isn't there. Why take a chance when there are clear winners like Owen, Jones, Garza, and Luttig? As Mark Levin put it today, "if Clement is as solid as some (a few) say, then let's see the evidence. Point us to the writings, the speeches, anything. Otherwise, count me among the detractors."
UPDATE: Lexie Verdon at the Washington Post Nomination Blog reports that Justice O'Connor today confirmed she will stay on until confirmation of a successor. Some background info about recess appointments is here and here.
Posted in News —
Posted at 12:54pm on Sep. 5, 2005 Roberts Hearings Postponed a Few Days
By AndrewHyman
In deference to the late Chief Justice William Rehnquist, the Roberts hearings are now set to begin within a week.
Posted in News —
Posted at 12:33pm on Sep. 5, 2005 A Hurricane Pick?
By AndrewHyman
Robert Novak reported recently that two women “pass fastidious muster on the Right." They are Judges Edith Hollan Jones and Priscilla Owen, both Texans. Novak was right, and both Jones and Owen continue to show up on conservatives' lists of favorites. Regarding Judge Edith Brown Clement, who is from Hurricane-hit Alabama and Louisiana, Slate wrote the following on June 24:
Clement doesn't provide much ammunition for opposition groups, but perhaps not much for conservatives to get excited about either. She hasn't written anything notable off the bench (or at least nothing that's come to light yet), and most of her judicial decisions have been in relatively routine and uncontroversial cases.
Posted in News —
Posted at 12:16pm on Sep. 5, 2005 An Excellent Choice . . . And Now?
By Carol Platt Liebau
President Bush has nominated John Roberts to succeed the man for whom he clerked, the late Chief Justice William Rehnquist.
From everything I've heard about Judge Roberts' temperament, it's an excellent choice. He seems to have the consensus-building skills that are vital in that particular position.
And by nominating him now, the President has ensured that Justice John Paul Stevens -- one of the most liberal members of the Court -- won't serve as Chief Justice on even an interim basis, which is a good thing. The one reason I had hoped the President would wait: Now, I fear, those in the MSM and on the left (as if there's a difference!) will start claiming that Roberts was nominated to replace Rehnquist, and all the whining for a "moderate" to replace Justice O'Connor will start up again.
Everyone should remember: Roberts was originally named as the O'Connor replacement; Luttig, McConnell, Estrada, Jones, Owens or Rogers Brown should be the "Rehnquist replacement" in terms of their views along the liberal-conservative spectrum.
Posted in SCOTUS —
Posted at 12:12pm on Sep. 5, 2005 A Case for Clement
By Erick
Joy Clement nearly had it. The media was buzzing hard. The liberals were unhappy. The conservatives were unhappy. Then the President chose Roberts. Now would be a good time for Clement.
Many conservatives were unhappy about Clement as a possible pick. She was "pulling a Souter." Clement has a shallow record that did not place her on any major issues. Conservatives have had every right to be worried.
Those who know Clement, however, know that she is a solid social conservative and originalist. Right now there is a lot of clamoring for a "Hurricane Pick" from both the left and right. Clement would be the perfect choice. Bush can nominate her, say everyone demanded it of him, and she'd have time to participate in some of the serious issues of the next term to prove her bona fides and show she is a conservative.
Now is the time to take advantage of a public demand and give them what they asked for -- an under the radar conservative who would satisfy those wanting a woman to replace a woman and satisfy those who want a hurricane pick.
Posted in SCOTUS —
Posted at 11:19am on Sep. 5, 2005 President's Statement Nominating Roberts
By AndrewHyman
BUSH: For the past two months members of the United States Senate and the American people have learned about the career and character of Judge Roberts. They like what they see.
He's a man of integrity and fairness and throughout his life he has inspired the respect and loyalty of others.
John Roberts has built a record of excellence and achievement and reputation for goodwill and decency toward others.
In his extraordinary career Judge Roberts has argued 39 cases before the nation's highest court. When I nominated him to the U.S. Court of Appeals for the District of Columbia, he was confirmed by unanimous consent.
Both those who have worked with him and those who have faced him in a courtroom speak with admiration of his striking ability as a lawyer and his natural gifts as a leader. Judge Roberts has earned the nation's confidence and I'm pleased to announce that I will nominate him to serve as the 17th chief justice of the Supreme Court.
The passing of Chief Justice William Rehnquist leaves the center chair empty, just four weeks left before the Supreme Court reconvenes.
It's in the interests of the court and the country to have a chief justice on the bench on the first full day of the fall term.
The Senate is well along in the process of considering Judge Roberts' qualifications. They know his record and his fidelity to the law.
I am confident that the Senate can complete hearings and confirm him as chief justice within a month. As a result of my decision to nominate Judge Roberts to be chief justice I also have the responsibility to submit a nominee to follow Sandra Day O'Connor. I will do so in a timely manner. Twenty-five years ago John Roberts came to Washington as a clerk to Justice William Rehnquist. In his boss, the young clerk found a role model, a professional mentor and a friend for life.
I am certain that Chief Justice Rehnquist [was] hoping to welcome John Roberts as a colleague. We're all sorry that day didn't come. It is fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice. Congratulations.
ROBERTS: Thank you Mr. President. I am honored and humbled at the confidence that the president has shown in me and I am very much aware that if I am confirmed I would succeed a man I deeply respect and admire, a man who has been very kind to me for 25 years.
Thank you Mr. President for that special opportunity.
Posted in News —
Posted at 10:44am on Sep. 5, 2005 The O'Connor seat, again
By Irishlaw
As for Oââ‚â„¢Connor, Iââ‚â„¢m told that the President will try to avoid re-inventing the wheel and will go back to those heââ‚â„¢s already looked at, including Jones, Clement, Luttig, McConnell, Gazra, Wilkinson, and Senator John Cornyn.
I would think that McConnell, Luttig, and Garza would be highest on that list for the President, and given that he is now selecting an associate justice position, Miguel Estrada might also be considered. I'd be happy to have a woman nominated, but really just want the best jurist for the job regardless of gender, race, or what have you. The president is usually unconcerned with the conventional wisdom in any event, so I'm fairly confident he will pick the right person.
One question that was raised following the original Roberts nomination: will the new nominee again be a Beltway insider? We discussed whether Washington connections were necessary anymore in order to be able to make it to confirmation. Do people still think this is the case?
Posted in SCOTUS —
Posted at 9:50am on Sep. 5, 2005 The O'Connor Pick
By Erick
Sources close to the White House tell me that earlier this year, when word came that Rehnquist might resign, the President actively considered Roberts for the spot given Roberts's temperment, administrative abilities, etc. Rehnquist's death, though sad, resolved the President's desire to do so.
As for O'Connor, I'm told that the President will try to avoid re-inventing the wheel and will go back to those he's already looked at, including Jones, Clement, Luttig, McConnell, Gazra, Wilkinson, and Senator John Cornyn.
My sources tell me that the odds do increase now that the President will pick a female to replace O'Connor. Conservatives are heavily pushing Edith Jones, but many think Jones would cause the expenditure of too much political capital, though conservatives would relish the opportunity for that fight.
I am told that privately Alberto Gonzales has taken his name out of consideration. It is understood that a Gonzales pick would ruin the President with core supporters at a moment that he very much needs them. Further, thinking has shiftly slowly over the past few months that Gonzales, due to his handling of affairs at the Justice Department, would have an extremely challenging confirmation.
Posted in SCOTUS —
Posted at 9:00am on Sep. 5, 2005 Roberts for CJ
By Erick
The President will resubmit John Roberts's nomination for Chief Justice. We know that several months ago Chief Justice Rehnquist had suggested such a move. We also know that the President had wanted Roberts in that position originally.
This is a good move.
The President will speak at 8am this morning.
Posted in SCOTUS —
Posted at 7:08am on Sep. 5, 2005 Sen. Sam Brownback as Chief Justice?
By Ryan K
Hugh Hewitt makes a surprise and interesting plug for 48-year-old Senator Sam Brownback as Chief Justice. Senator Brownback, a proud traditional conservative, earned a law degree from University of Kansas in 1982 and practiced law for a few years before accepting an appointment as the Kansas Secretary of Agriculture in 1986.
Hewitt unequivocally prefers Luttig, but sees Sen. Brownback also fitting President Bush's desire for a jurist who respects the Constitution as written and someone who will benefit from the expected Senator courtesy of not opposing one of their own. Political skills, the theory goes, are an asset for a Chief Justice in swaying other Justices to a particular line of reasoning.
Sen. Brownback announced in 2005 that he will honor his self-imposed term-limit pledge and not seek re-election in 2010 when he will be only 54-years-old. I would hate to see a conservative leader with a bright future plucked forever from politics, but it would be a fair trade for a reliable and pursuasive textualist as Chief Justice.
Posted in SCOTUS —
Posted at 1:33am on Sep. 5, 2005 Don't Mess With Success
By Pejman Yousefzadeh
There is some talk about withdrawing John Roberts's nomination and resubmitting it--this time with Roberts as the nominee for the position of Chief Justice. I know that I said before that Roberts would make an ideal Chief. I still believe it. But there is no reason whatsoever to pull his nomination and resubmit. Why mess with a good thing, after all?
Sen. Kent Conrad, a Democrat from North Dakota, sounds like a swooning Republican when he talks about Supreme Court nominee John G. Roberts Jr.
"I am impressed with his demeanor, his intelligence, his sense of humor, his modesty," said Conrad. "Absent some bombshell, which I don't expect, I think he will be confirmed and quite handily."
Praise like this is bad news for the nearly 30 liberal special interest groups calling on Democrats to block Roberts's rise to the Supreme Court. But it is good politics for Democrats such as Conrad who are running for reelection in states that President Bush won, according to several senators and strategists.
With the confirmation hearings expected to focus extensively on Roberts's views on abortion, affirmative action and other social issues, a number of Democrats say it would be unwise politically for Conrad and the five other red-state senators to side with liberal groups such as People for the American Way and NARAL Pro-Choice America.
This calculation is a chief reason both sides expect Roberts to be confirmed by the Senate -- with the only real debate among head counters from both parties being how many Democrats will join Republicans in voting yes.
"You are going to be arguing about issues that we all saw Democrats paid a heavy price for in the last election," said Leon Panetta, a former Democratic House member who served as Bill Clinton's White House chief of staff. "Democrats have a tremendous opportunity right now to hit Bush where he's weak, which is on oil prices and the war. Don't hit him where he's strong, which is these values issues."
With the hearings two days away, Republicans and Democrats are carefully weighing the political implications of the Roberts vote for the 2006 congressional elections and the 2008 presidential race.
Nearly six in 10 Americans -- 57 percent -- say the Senate should confirm Roberts to the high court while 22 percent say it should not, according to a Washington Post-ABC News poll. That's virtually identical to the results of a Post-ABC poll taken immediately after Bush nominated him five weeks ago, suggesting the drumbeat of criticism from liberal groups has had little effect.
If anything, the intense scrutiny of Roberts's record as a lawyer and judge may be benefiting the nominee, the survey suggests. Four in 10 -- 39 percent -- said the more they heard about Roberts, the more they liked him, while 28 percent said new information has made them feel less favorable toward the nominee. Most of the positive movement has occurred among Republicans and political conservatives, and much of the erosion occurred among Democrats and liberals, according to the poll.
Republicans say they expect to benefit politically no matter how Democrats vote, as long as Roberts is confirmed. Several GOP officials said a resounding victory would safely inoculate Republican candidates from charges that Roberts holds legal views that are anathema to the rights of women and minorities, as Democrats plan to contend in the hearings.
There is, quite frankly, no reason whatsoever to change this situation. Better to stick with the current state of affairs. Roberts will very likely be confirmed and will thus shore up originalist and strict constructionist thinking--which Justice O'Connor oftentimes departed from. Another candidate can be named as Chief Justice--perhaps the absolutely superb Michael McConnell will get his due and be named (there are plenty of other good candidates out there as well)--and the nomination process will thus proceed in a smooth and successful manner. Things are simply going too well with the Roberts nomination to upset the applecart now--especially given that the hearings for the nomination are scheduled to begin on Tuesday.
Posted in Uncategorized —
Posted at 1:25am on Sep. 5, 2005 In Memoriam: Chief Justice William Hubbs Rehnquist
By Pejman Yousefzadeh
I knew he was sick. I knew that he was very sick. I knew that he was probably dying. And yet, his actual death is shocking for reasons I somehow cannot fully explain. Maybe it is because we are dealing already with such a momentous news week and we collectively thought that we might get some kind of respite or breather as we collectively gathered our thoughts.
It is far too early to tell how the issue of a replacement will be handled, but the White House had better get ahead of the expectations game for its own sake. And quickly. An entire opposition team dedicated towards fighting against any Supreme Court nomination from the Bush Administration found itself defanged by the nomination of John Roberts--given Roberts's obvious intellectual qualifications and the manner in which he has won praise and respect among members of the Establishment. Now, that same opposition team will gear up to fight against the Bush Administration's next nomination--and will smell blood given the President's poll numbers and given the partisan back-and-forth that has developed over Hurricane Katrina. If the White House enters this battle with anything less than total commitment, it will find itself suffering a serious political blow. The prospects are high that a nomination that suffers from even a moderate degree of mismanagement will end up being defeated on the Senate floor--or at the very least, successfully filibustered.
One talking point that should be pushed--and has the virtue of being true--is the argument that since Senate Democrats demanded that Justice O'Connor's replacement be in the mold of Justice O'Connor herself, it would be only fair to demand that the next Chief Justice be in the mold of William Rehnquist. Of course, this talking point won't be embraced by those who advanced it in the wake of Justice O'Connor's resignation, but consistency may be said to matter here. I should note that I stand by my argument that one need not necessarily replace one Justice with another of the same ideological cast--though I certainly want the next Chief Justice to be of the same ideological cast as Chief Justice Rehnquist--but we are not arguing against little old me. We are arguing against Senators Kennedy, Leahy, Schumer and others who are significantly more powerful than little old me.
Lest this be entirely a political post, let me offer the hope that Chief Justice Rehnquist will be remembered for the man that he was instead as a caricature in the minds of others. Deeply brilliant, unfailingly gentlemanly and courteous to all and sundry, blessed with a quick wit and a sense of humor that charmed and endeared, he made a lasting contribution to the Nation's jurisprudence and will be remembered as one of the most consequential Chiefs in the history of the United States Supreme Court. He handled a very fractious Court and widely varying temperaments on it with tact, diplomacy and dignity. Always conscious of his office and its demands, always respectful of the Court and the law it served, he exemplified Robert E. Lee's comment that "Duty is the sublimest word in the English language."
He will be dearly missed by those who identified with his views and even by many who did not but who respected the man even as they took issue with his beliefs.
My deepest condolences to the Rehnquist family. May they find comfort in a time of trial.
Posted in Uncategorized —
Posted at 8:05pm on Sep. 4, 2005 The Possibility of a Recess Appointee
By AndrewHyman
If President Bush is going to make a recess appointment of a new Chief Justice, he'd better be prompt. The Senate will be back in session at noon on Tuesday. A recess appointment might well be the best way to go, and then the nomination of John Roberts could go forward for the O'Connor seat.
Tom Goldstein put it this way at SCOTUS Blog:
[I]t is in the President's interest not to couple the process of confirming the successors to Justice O'Connor and the Chief Justice. Democrats have a stronger argument against a conservative successor to the Chief if the nominations are perceived as a package. If the process of confirming a successor for the Chief remains separate and distinct, it is easier for the President to maintain that a conservative appointment to succeed the very conservative William Rehnquist will not move the Court further to the right. So I think that the hearings will likely move forward.
Also at SCOTUS Blog, Lyle Denniston pointed out the possibility of a recess appointment:
It is possible, of course, that the President could provide a temporary replacement for Rehnquist....A recess appointee could serve until the end of the current Congress -- that is, until January of 2007. The death of Chief Justice Rehnquist necessitates unprecedented leadership among "conservatives" in the Senate. The left will immediately commence a battle, the likes of which have never before been seen.
I would predict, therefore, that President Bush will very soon make a recess appointment of a new Chief Justice, probably from outside the Supreme Court, along the lines of Jones, Luttig, Garza, or Owen. I don't think that there will be any elevation of an associate justice, but that could be done by recess appointment too (and probably without the elevated Justice losing lifetime membership in the Supreme Court). Here's some info from Wikipedia about Justices Scalia and Thomas:
Justice Antonin Scalia (born March 11, 1936) has been a U.S. Supreme Court Associate Justice since 1986. He is widely considered the leading judicially conservative voice on the Court and one of the most forceful modern advocates of originalism and the plain meaning rule. With the recent death of Chief Justice William Rehnquist, it is widely speculated that Justice Scalia will be President Bush's nominee to replace Rehnquist as the Chief Justice, although this would be unusual as presidents have traditionally appointed Chief Justices from outside the court....
Justice Clarence Thomas (born June 23, 1948) has been an Associate Justice of the Supreme Court of the United States since 1991. He is considered to be part of the "conservative wing" in the current court. He is the second African-American to serve on the nation's highest court and, as of 2005, is the youngest justice by nearly nine years.
Justice Scalia is very smart and wise, but his abilities as a consensus builder are open to question, given his sometimes blunt opinions. How well could he manage a cohesive conservative court? Hard to say. At age 69, he would probably have a shorter tenure than a younger nominee. Justice Thomas is also smart and wise, but understandably reluctant to have another experience in the Senate Judiciary Committee.
A potential downside to elevating either Justices Scalia or Thomas would be that Democrats who vote for them could thereby counter the charge that they wouldn't vote for a conservative --- and Democrats could do so without really altering the balance on the Court at all. Having approved a Chief Justice Scalia or Thomas, Democrats could then more easily oppose a conservative to fill the old seat of Scalia or Thomas.
Posted in News —
Posted at 5:44pm on Sep. 4, 2005 No delays
By Irishlaw
The Hill reports that Senators Kennedy, Schumer, possibly Leahy, and Dodd would all prefer now to postpone Roberts's confirmation hearings. I understand the thinking that with a national disaster ongoing in the Gulf, that should be a focus for the government . . . but I don't think it should be a focus for the Senate Judiciary Committee. Rather, I'm glad to see that President Bush has said he will move to select a new nominee "promptly," and I hope that he encourages the confirmation hearings to continue as scheduled. It would be frustrating (to say the least), however, if in spite of the President's or Sen. Hatch's wishes, the lovely Chairman Specter demurs.
Posted in Uncategorized —
Posted at 5:25pm on Sep. 4, 2005 More on the Impact of the Chief Justice's Death
By Carol Platt Liebau
President Bush has pledged to name a successor to Chief Justice Rehnquist quickly.
A number of questions have arisen over the last day pertaining both to the President's course of action in light of the Chief Justice's death, and the upcoming hearings on the Roberts nomination.
Among the issues being discussed on the Sunday news shows:
Should the Roberts hearings go forward as scheduled? My view: Certainly -- now more than ever, it's imperative to get Roberts confirmed and on the Court.
Should the President "change" the Roberts nomination to one for Chief Justice? My view: No. If he wishes to name John Roberts Chief Justice, he can do so later.
Should Sandra Day O'Connor stay on until both vacancies are filled? My view: No. She pledged to stay on only until her successor is seated -- and her successor is (hopefully) going to be John Roberts.
Should the President name Justice Scalia to be Chief Justice? My view: Justice Scalia is one of the most brilliant conservative minds in America today (and possibly ever). The question is whether the job of Chief Justice involves consensus building and administrative tasks with which Justice Scalia would rather not be burdened.
Should the President name Justice Thomas to be Chief Justice? My view: It would be a historic first -- an African American Chief Justice, and an interesting opportunity to watch those who call for increased "sensitivity" to African Americans in the wake of the New Orleans disaster demonstrate some hypocrisy by mistreating Justice Thomas, as they inevitably would. But it's far from clear that Justice Thomas -- a wonderful man and a great intellect -- even wants the job. Even so, wouldn't it be quaint if the Democrats tried to raise the Anita Hill issue . . . which now sounds like child's play in the post Clinton/Lewinsky era?
Nominating either Scalia or Thomas for Chief would guarantee a messy political fight -- but it's worth noting that all the left's namecalling (John Roberts hates women/civil rights/etc.) has had little impact on public opinion.
Given their strong conservative views and impressive minds, President Bush could also name the first female Chief Justice -- how about Edith Jones or Priscilla Owen of the Fifth Circuit? That being said, President Bush has been admirably reluctant simply to play racial or gender politics. And if he feels that Judge Michael Luttig of the Fourth Cicruit or Judge Michael McConnell of the Tenth Circuit is the right choice, I would be delighted. Both judges are as fine as they come, in terms of both intellect and temperament.
Other notes: As most readers are probably aware, as the longest serving justice, Justice Stevens will assume the duties of the Chief Justice until a successor is confirmed. To the extent that (once Roberts is hopefully confirmed) any decisions would come down as 4-4 ties, that would mean that the decision of the relevant appeals court would stand.
Posted in SCOTUS —
Posted at 4:33pm on Sep. 4, 2005 President Will Choose Second Nominee "Promptly"
By AndrewHyman
That's what Pres. Bush said Sunday morning. For details about the remarkable life and career of Chief Justice Rehnquist, the blog How Appealing provides a great deal of information.
Background about various possible nominees is available over at the right-hand-side of the confirmthem homepage, under the category "SCOTUS Candidates." Maybe the hearings on John Roberts will be postponed, but I suspect that Chief Justice Rehnquist would have wanted the Senate to stay on the job, just like he stayed on the job.
I hope the new nominee will be just as inclined as Chief Justice Rehnquist was to conserve the Constitution as written . Judges Luttig, Jones, Owen, and Garza come to mind. And let's please not have Chief Justice Rehnquist's successor chosen based upon placating people who are upset (rightly or wrongly) about Hurricane Katrina and its aftermath. That hurricane has already done enough damage.
UPDATE: The Hill reports:
Democrats such as Schumer would like Roberts to fill Rehnquist's seat --- Roberts seems closer in his conservative judicial philosophy to the late Chief Justice than he does to O'Connor --- and leave it until later to find a replacement for O'Connor. That way, Robert's confirmation, which is widely expected to be relatively easy despite liberal objections, would not move the court to the right, an outcome that is anathema to most Democrats and pressure groups on the left.
It will be interesting to see what happens.
Posted in News —
Posted at 12:05pm on Sep. 4, 2005 The President on the Death of the Chief Justice
By AndrewHyman
President Bush made this statement Sunday morning:
Our nation is saddened today by the news that Chief Justice William Rehnquist passed away last night. Laura and I send our respect and deepest sympathy to this good man's children, Jim, Janet, and Nancy. We send our respect to all the members of the Rehnquist family.
William H. Rehnquist was born and raised in Wisconsin. He was the grandson of Swedish immigrants. Like so many of his generation, he served in the Army during World War II. He went on to college with the help of the G.I. Bill. He studied law at Stanford University. He graduated first in his class, that included his future colleague, Sandra Day O'Connor. Judge Rehnquist, and his late wife, Nan, raised their family in Phoenix, where he built a career as one of Arizona's leading attorneys. He went on to even greater distinction in pubic service as an assistant U.S. attorney general, associate justice of the Supreme Court, and for the past 19 years, Chief Justice of the United States.
He was extremely well respected for his powerful intellect. He was respected for his deep commitment to the rule of law and his profound devotion to duty. He provided superb leadership for the federal court system, improving the delivery of justice for the American people, and earning the admiration of his colleagues throughout the judiciary.
Even during a period of illness, Chief Justice Rehnquist stayed on the job to complete the work of his final Supreme Court term. I was honored and I was deeply touched when he came to the Capitol for the swearing-in last January. He was a man of character and dedication. His departure represents a great loss for the Court and for our country.
There are now two vacancies on the Supreme Court, and it will serve the best interests of the nation to fill those vacancies promptly. I will choose in a timely manner a highly qualified nominee to succeed Chief Justice Rehnquist. As we look to the future of the Supreme Court, citizens of this nation can also look with pride and appreciation on the career of our late Chief Justice.
More than half a century has passed since William H. Rehnquist first came to the Supreme Court as a young law clerk. All of his years William Rehnquist revered the Constitution and laws of the United States. He led the judicial branch of government with tremendous wisdom and skill. He honored America with a lifetime of service, and America will honor his memory.
May God bless the Rehnquist family. Thank you all very much.
Hat Tip: Bench Memos. Our sympathies go out to the Rehnquist family.
Senator Dodd is urging the President to ask that Justice O'Connor postpone her retirement. However, Senator Cornyn says the Roberts hearing can and should proceed, in order to fill the O'Connor vacancy. I tend to agree with Cornyn. Also, Senator Schumer is urging delay of the Roberts hearing, but Senator Hatch disagrees.
Posted in News —
Posted at 3:07am on Sep. 4, 2005 Rest in Peace, Mr. Chief Justice
By Carol Platt Liebau
It's been reported that Chief Justice Rehnquist has died at his suburban Washington home, surrounded by his three children.
He was an honorable man and a worthy justice. My only contact with him was at a Christmas party at the Supreme Court in 1993; I will never forget him standing by the piano in a big room at the Court, leading the Christmas carol sing-along.
He stood for conservative judicial principles on the Court for many years. In the pre-Scalia and pre-Thomas era, he was often alone in his opinions . . . but he was right.
May God bless him and may he rest in peace.
Posted in SCOTUS —
Posted at 12:25am on Sep. 4, 2005 <strong>Chief Justice William H. Rehnquist</strong>
By feddie
RIP.
Posted in Uncategorized —
Posted at 12:18am on Sep. 4, 2005 Rehnquist Has Died
By Ryan K
A Supreme Court Spokeswoman says Chief Justice William Rehnquist has died (according to the NY Times front home page).
Posted in SCOTUS —
Posted at 11:14am on Sep. 2, 2005 From James Bopp at the Madison Center
By Marshall Manson
Mr. Bopp, who is a distinguished First Amendment attorney and Supreme Court litigator, distributed a release yesterday criticizing Senator Schumer's speech before the American Constitution Society. Read every word:
James Madison Center for Free Speech Says that Senator Schumer Seriously Distorted Supreme Court Case Republican Party of Minnesota v. White in calling on Judge Roberts to Answer Questions
In a speech hosted by the liberal group the American Constitution Society, New York Senator Charles Schumer said, in calling for Judge Roberts to answer questions next week before the Senate Judiciary Committee:
"Second, in addition to Judge Roberts' own precedence, they also overlook a very real legal precedent which came in 2002, nine years after Judge Ginsburg testified. This is the only thing the Court has said on it, fortunately it was said by Justice Scalia. The case of Minnesota Republican Party versus White. In White, the Supreme Court to which Judge Roberts aspires made clear when judicial candidates state their view on issues and decided cases their impartiality is not undermined. Listen to Justice Scalia in 2002 quoting Justice Rehnquist in 1972. "Proof that a justice's mind at the time he joined the court is in the area of constitutional adjudication would be evidence of lack of qualification not lack of bias.""
James Madison Center General Counsel, James Bopp, Jr., who argued and won the White case, is one of the national's leading experts on judicial speech and the First Amendment. On the Schumer statement, Mr. Bopp says, "Senator Schumer ignores two key elements in the Supreme Court's analysis. First, while a judicial candidate has a First Amendment right under White to announce their views on disputed legal and political issues, it would be wrong and unethical for a judicial nominee to pledge or promise certain results in particular cases. Unfortunately, several Democrat members of the Judiciary Committee have threatened to vote against Judge Roberts if he does not promise to uphold various dubious Supreme Court precedents, such as Roe v. Wade."
Indeed, Senator Biden recognized that difference at the beginning of Judge Ginsburg's Senate Judiciary Committee hearing when he said that "the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her. There is a real difference . . . between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee's independence and impartiality, and question on judicial methods and philosophy."
Mr. Bopp continued: "Second, Senator Schumer ignores the role that recusal plays here. The American Bar Association has currently taken the position that a judge is ethically required to recuse and disqualify himself if 'the judge, while a judge or a candidate for judicial office, has made a public statement that commits, or appears to commit the judge with respect to an issue in the proceeding or the controversy in the proceeding.' While I disagree with this approach, a prudent judicial nominee must consider whether the ABA may be right and his future recusal would be demanded, if he goes beyond statements about his general judicial philosophy. This is particularly true since Justice Kennedy, the crucial fifth vote in White, endorsed the idea that a state 'may adopt recusal standards more rigorous that due process requires.'"
James Bopp, Jr. has a national federal and state election law practice. He is General Counsel for the James Madison Center for Free Speech and former Co-Chairman of the Election Law Subcommittee of the Federalist Society.
Posted in News —
Posted at 8:14pm on Sep. 1, 2005 Off Topic II
By Carol Platt Liebau
One more little reminder that today is the "blog for hurricane relief" day.
My choices -- the reasons are set forth in more detail here -- are The Salvation Army and The Humane Society.
An astounding array of links to participating blogs and their charities are both at Instapundit and at Truth Laid Bear.
If you want to assess the effectiveness of assorted charities, Charity Navigator can help.
Posted in Uncategorized —
Posted at 9:56am on Sep. 1, 2005 Off Topic...
By Marshall Manson
Please pardon me for a moment while I stray off topic...
Hugh Hewitt, Instapundit, and Michelle Malkin have designated today as Katrinia Flood Aid day on the blogosphere.
Count me in. I'll be following Greg Hlatky's lead and giving to the AKC's Canine Relief Fund (to help the countless pups abandoned or lost after the storm).
Visit Instapundit for an unparelleled list of charities to choose from.
Posted in Uncategorized —
Posted at 9:38am on Sep. 1, 2005 News: Thurs. Sept. 1
By Marshall Manson
Headlines for the morning of September 1:
Bipartisan intro set for Roberts hearings
Kathy Kiely and Judy Keen, USA Today
Lengthy Practices Prepare Court Nominee for His Senate Hearings
Elisabeth Bumiller, New York Times
Commentary: When the critics grow desperate
Paul Greenberg, Washington Times
Would Roberts practice the restraint he preaches?
Warren Richey, Christian Science Monitor
Tony Mauro, USA Today
Roberts Poked at Congress As Reagan Lawyer
Jesse Holland, Associated Press
The Cordial Nominee Once Had Choice Words for Lawmakers
Jo Becker and Brian Faler, Washington Post
Roberts criticized award to lawmaker in '83
Stephen Dinan, Washington Times
Commentary: A revealing hearing? It could happen
Paul Sracic, USA Today
Roberts and O'Connor Share Similar Style
Gina Holland, Associated Press
Civil rights leaders oppose U.S. court nominee
Reuters
Commentary: The role of judges cuts both ways
George Will, Townhall.com
Posted in News —
Posted at 8:28pm on Aug. 31, 2005 Big Shock
By Carol Platt Liebau
A bunch of left wing interest groups have announced their opposition to Judge Roberts' nomination. No doubt the decision came after thorough, careful and dispassionate deliberation.
Frustrated by the lack of controversy over the nomination, NAACP Chairman Julian Bond has said, "Some senators seem overcome by his attractiveness, his cute children, his attractive wife, his pleasant demeanor." Presumably, the support of Republican senators is a given. But surely, surely he isn't talking about the Democrats!
Posted in Analysis and Predictions —
Posted at 3:42pm on Aug. 31, 2005 Hearing Glossary
By Marshall Manson
From the great folks at Committee for Justice:
A Hitchhikerââ‚â„¢s Guide to the Roberts Hearings: Glossary of Terms
With Judge John Robertsââ‚â„¢ confirmation hearing set to begin next week, and liberal interest groups now in full scale attack mode, the Committee for Justice releases the following Viewersââ‚â„¢ Guide to the Hearings to help the American people cut through the spin.
When liberals sayâ₦
- civil rights, they mean racial quotas and forced busing.
- reproductive rights, they mean underage girls should get abortions without notifying their parents.
- equal pay for women, they mean government bureaucrats determining your pay.
- environmental protection and worker rights, they mean the government has unlimited power to regulate private property and business.
- church-state separation, they mean your town canââ‚â„¢t display a Menorah or Christmas crèche during the holidays.
If confirmed, Roberts will benefit the country by not being a judicial activist:
- First and foremost, Roberts won't allow bureaucrats to seize ordinary peopleââ‚â„¢s private property.
- He wonââ‚â„¢t redefine traditional marriage.
- He wonââ‚â„¢t strike ââ‚Ëœunder Godââ‚â„¢ from the Pledge of Allegiance.
- He wonââ‚â„¢t force the Boy Scouts to hire openly homosexual Scoutmasters.
- He wonââ‚â„¢t favor criminalsââ‚â„¢ rights over victimsââ‚â„¢ rights.
- He wonââ‚â„¢t protect simulated child pornography on the Internet.
- He wonââ‚â„¢t allow Congress to legislate in areas where the Constitution doesnââ‚â„¢t grant it authority.
- He wonââ‚â„¢t ban the death penalty.
- He wonââ‚â„¢t permit the politicians to regulate what we say about them at election time.
- He wonââ‚â„¢t allow government to treat people differently because of their skin color.
- He wonââ‚â„¢t hamstring the military and intelligence services in the War on Terror.
- He wonââ‚â„¢t block school choice for kids trapped in failing schools.
- He wonââ‚â„¢t eliminate the right to gun ownership.
Posted in Roberts —
Posted at 9:53am on Aug. 31, 2005 News: August 31
By Marshall Manson
Headlines for the morning of August 31:
Roberts Preps for Senate Hearing
Jesse Holland, Associated Press
Commentary: Empty Files
Roger Clegg, National Review
Reagan Library Finds Thousands of Additional Roberts Documents
David Kirkpatrick, New York Times
More Roberts papers discovered
Charles Hurt, Washington Times
Documents by Roberts discovered
Maura Reynolds, Los Angeles Times
Dems Say Some Roberts Papers a Problem
Jesse Holland, Associated Press
Alliance Assails Roberts on Rights
Thomas Edsall, Washington Post
Both sides step up battle over US court nominee
Thomas Ferraro, Reuters
Commentary: Road to Redemption
Manuel Miranda, Opinion Journal
Questions for Roberts Submitted on Web
Devlin Barrett, Associated Press
Blacks see Roberts racially 'secluded'
Brian DeBose, Washington Times
Roberts tied to Bush-Quayle campaign
Michael McGough, Pittsburgh Post-Gazette
Commentary: Roberts: The Before and The After
Jonathan Turley, USA Today
Editorial: The Roberts stakes
Boston Globe
Posted in News —
Posted at 4:33pm on Aug. 30, 2005 A day for other things...
By Marshall Manson
Discussions about politics, the law and the courts seem absurdly irrelevant on days like this when so many of our friends and neighbors find their lives in jeopardy and and their homes awash or destroyed. On this day, there is appropriately little to talk about on the Supreme Court front, and I, for one, wouldn't want to talk about it even if there was.
So I'll get back to the Roberts confirmation tomorrow with clips and comments.
Until then, Michelle Malkin is doing an amazing job with hurricane coverage. She's got the links you need to get the complete story.
And our friends over at Red State have information about how you can help.
Finally, I want to heap some praise on the folks at the Times Picayune in New Orleans as well as the Biloxi Sun Herald and the other local media outlets who are continuing to report and publish -- providing critical information to their communities -- in spite of nearly insurmountable challenges. I am often critical of local media, but it's times like these when they are at their best.
Posted in News —
Posted at 10:25am on Aug. 30, 2005 Morning News
By Marshall Manson
Since I'm doing it for the CFIF site anyway, I thought it would be useful for me to post the morning's newspaper headlines and other pieces of interest here at Confirm Them. I'll try it for a few mornings and see it how it goes. Headlines should be up by 9:30a. (However, they will always be posted here first.)
So, the Roberts news for August 30 appears after the jump:
Commentary: Recent hearings haven't done us proud
Kathleen Parker, USA Today
Roberts supporters prepare for confirmation hearings
Jim Baron, Pawtucket Times
Commentary: Claim of omnipotence
Bruce Fein, Washington Times
Commentary: Senator Wile E. Coyote
Hadley Arkes, National Review
Dems to Question Roberts on Torture Memo
Jesse Holland, Associated Press
Roberts Leaves Meeting With Homework
Sheryl Gay Stohlberg, New York Times
Roberts to Be Quizzed on Torture
Maura Reynolds, Los Angeles Times
Editorial: If PFAW Had Its Way
Human Events
Roberts Memo Urged Laws Prohibiting Busing, Quotas
R. Jeffrey Smith and Charles Babington, Washington Post
Documents offer insight into Roberts' work in '80s
Joan Biskupic and Toni Locy, USA Today
Tom Brune, Newsday
Roberts Tried to Rein in Employment Agency, Memo Says
Bloomberg News
Nominee Opposed Police Role for Agencies
Todd Purdum, New York Times
Roberts Has Gotten Uneven Senate Treatment
Dave Espo, Associated Press
Commentary: The Proper Role of Judges
Rebecca Hagelin, Townhall.com
Posted in News —
Posted at 2:44am on Aug. 30, 2005 Justice Scalia on Politicized Judicial Confirmations
By Carol Platt Liebau
It was a great privilege to have the opportunity to hear Justice Antonin Scalia give the annual Madison Lecture this evening at Chapman University School of Law. (Before reading the discussion below, please note it was public and open to the press).
The topic of his talk was "Constitutional Interpretation, or Why Judicial Nominations Have Become Controversial" -- and, of course, it was brilliant. Justice Scalia pointed out that, during the last half of the twentieth century, the notion of a "living Constitution" (i.e. a Constitution that is interpreted in accordance with justices' notions of "evolving standards of justice") has created a climate in which society's most difficult moral questions are settled not by legislatures (i.e. the voice of the people), but by unelected judges, who manage to find novel "rights" in the Constitution despite the lack of a clear historial or textual basis for them.
However, according to the Justice, because America is, indeed, a democratic society, the peoples' voices will be heard -- one way or another. And if judges begin acting as superlegislatures -- settling moral questions that they have no special qualifications to decide -- then the judicial confirmation process will become political. In other words, if the Justices are going to start interpreting the Constitution in accordance with their own political and policy predilections, then all different political groups are going to try to ensure that the person making the superlegislative decisions are making them in a way with which the political group agrees.
Or, to put it in the most starkly simple terms: The more that judges act like politicians, the more political the nomination and confirmation processes will become -- to the detriment of the system of self-government set forth in the Constitution.
Once the process is completely political, as Justice Scalia points out, the Constitution ceases to fulfil its function of stopping the majority from doing whatever it wants to do -- rather, it becomes nothing more than a tool of the majority's will. Dangerous, indeed.
The responsibility for the regrettable politicization of judicial nominations lies directly with Democrats, in my view. They are the ones who began the practice of "Borking" back in 1987 because they were afraid of losing control of the judicial branch. Now that Dems control neither the presidency nor Congress, their fear has grown to the point where they are trying to "bork" federal circuit court judges, as well. (And note the contrast between the treatment of R.B. Ginsburg/Breyer vs. that of Bork/D. Ginsburg/Souter/Thomas).
As Justice Scalia pointed out, every Republican president since Richard Nixon has sworn to pick only justices that believe in "judicial restraint"; in contrast, every Democratic nominee since Michael Dukakis has pledged to nominate justices who will uphold Roe v. Wade (i.e., justices who are willing to take upon themselves the power to decide when life begins and how nascent life can/should be treated). To me, that really says it all.
Finally, one little joke from the Justice:
Q. What is the meaning of a "moderate" interpretation of the Constitution?
A. An interpretation halfway between what the Constitution says and what a justice would like it to say.
Posted in SCOTUS —
Posted at 2:45pm on Aug. 29, 2005 Questions Conservatives Should Welcome
By Carol Platt Liebau
Here, left wing law professor Cass Sunstein weighs in on what he believes the Judiciary Committee should ask Judge Roberts.
Some of his suggestions aren't half bad. I'd be interested to know what Judge Roberts thinks about originalism, and what he believes constitutes judicial "activism" (to me, it's not simply a matter of whether one votes to reverse precedent. It's whether one is trying to impose by judicial fiat revolutionary policy and political changes that are contrary to the expressed wishes of the country).
More generally, it would be wonderful for the hearings to be a learning opportunity for all of us. Republicans and conservatives shouldn't fear this prospect -- they should welcome it. It's been far too long that liberals have acted as though some of their very radical constitutional interpretation is simply the "mainstream." And with his intellect, his cool head, and his vaunted ability to answer even the toughest questions cogently, Judge Roberts would be the perfect man for the job -- if he chose to do it.
To take one example: We tend to believe that the original intent of the founding fathers matters -- and are less likely to be of the view, as Sunstein delicately puts it, that the "meaning of the Constitution evolves over time." For if that's the case, who's to decide what the meaning of the document is? Nine unelected judges? That's called oligarchy. No, there's no need to fear -- if our positions are properly explained -- that the majority of the country is against us.
One final note: Sunstein loses all credibility at the end of the piece when he aruges that:
But Justices David Souter, Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer -- to name just four -- provided answers that offered strong indications about their most fundamental beliefs.
Ruth Bader Ginsburg??? She refused to answer so many questions that no one learned anything through her hearing (although everyone knew she was a hard-core lefty even before it). And as for David Souter -- if his answers had provided any indication about what he turned out to be, scores of Republicans would have voted against him . . . and Teddy Kennedy would have supported him.
Posted in Analysis and Predictions —
Posted at 12:54pm on Aug. 29, 2005 Prof. Rotunda on Roberts' Ethics
By Marshall Manson
Professor Ronald Rotunda is a leading authority on legal ethics and constitutional law. He has written a 15-page letter to Judiciary Committee Chairman Arlen Specter that thoroughly destroys any contention that Judge Roberts somehow committed an ethical breech by participating in the decision in the Hamdan case.
Here's the expert's conclusion:
Past practice of other judges who have accepted or considered appointment for other offices, including past practice of Judge Robertsââ‚â„¢ predecessors on the D.C. Circuit, demonstrates that he did not violate 28 U.S.C. § 455(a) [the rule that the Left has alleged Roberts violated].
UPDATE: A second legal ethics expert, Professor Thomas Morgan, has also written a letter on this subject. His conclusion:
In short, in my opinion, no reasonable observer can ââ‚Å“reasonably questionââ‚? the propriety of Judge Robertsââ‚â„¢ conduct in hearing the Hamdan case. He clearly did not violate 28 U.S.C. §455. Indeed, he did what we should hope judges will do; he did his job. He participated in the decision of a case randomly assigned to him. We should honor him, not criticize him, for doing so.
(Hat tip, Blogs for Bush)
UPDATE II: Johnathan Adler has a post up on this topic over at Bench Memos.
Posted in Judiciary Committee —
Posted at 12:48pm on Aug. 28, 2005 Pull Up a Chair, Pop Up the Corn
By Carol Platt Liebau
David von Drehle of The Washington Post predicts that John Roberts is a "bad bet for fireworks" in his Judiciary Committee hearings.
Yes, but that's what makes him so dangerous to the Democratic leftists, poseurs and presidential wannabes who sit in a disproportionate number on the Committee, including: Biden, Feingold, Leahy, Kennedy and, of course, Durbin! One doesn't need fireworks from Roberts for the hearings to be delightfully entertaining. Watching the motley crew named above go red in the face as they rudely demand certain responses from Judge Roberts is, alone, worth the price of admission.
Even Dianne Feinstein , who enjoys a reputation for being much more moderate than her voting record would suggest, is claiming a special responsibility to obtain answers from John Roberts.
All of it promises to be very, very revealing.
Posted in Judiciary Committee —
Posted at 2:56pm on Aug. 26, 2005 Di-Fi Is for Women?
By Marshall Manson
The New York Times has a touchy-feely puff piece today about Sen. Diane Feinstein (D-CA). The piece focuses on how Sen. Feinstein is the only woman on the Senate Judiciary Committee, and how -- because of this coincidence of gender -- she feels a special responsibility.
This is my favorite line, though -- from the Senator herself:
ââ‚Å“As the only woman on the committee, I have an additional role to play in representing the views and concerns of 145 million American women during this hearing process,ââ‚? Mrs. Feinstein said.
And some people think representing a single district or even a state is tough work!
Senator Feinstein seems to think that sheââ‚â„¢s speaking on behalf of all the women in America. But given the Senatorââ‚â„¢s recently announced litmus test for Judge Robertsââ‚â„¢ confirmation, I think not.
Just ask Kathryn Lopez, for one. Or this powerful assemblage of Women for Roberts.
Posted in News —
Posted at 12:51pm on Aug. 26, 2005 Civil War Silliness
By Marshall Manson
A friend e-mails this Washington Post article and comments, ââ‚Å“The witch hunt devolves. Can it get any sillier?ââ‚? Indeed.
And normally, I would just leave it at that, blowing off the story with a sarcastic comment and moving on with my day. No one can actually take this stuff seriously, right?
My problem is that this story has the same odor as the Associated Press story to which I devoted an afternoon not too long ago. Like the AP story, it charges racism by implication. It recounts how, when drafting a speech for President Reagan, Roberts apparently crossed out the words ââ‚Å“Civil Warââ‚? and replaced them with ââ‚Å“War Between the States.ââ‚? The article goes to on to quote a history professor saying:
ââ‚Å“People opposed to the civil rights movement of the 1960s and 1970s would undoubtedly be more comfortable with the words he chose.ââ‚?
There is no accompanying quote to rebut this absurd suggestion. So, the article seems crafted to leave this impression: Since Roberts wrote War Between the States in a draft speech, he must be racist.
Perhaps we can propose another logical conclusion: Because Jo Becker wrote this story, she is either an idiot or partisan hack.
I donââ‚â„¢t buy either one of these conclusions, but the second has a lot more credence than the first.
Posted in Uncategorized —
Posted at 12:15pm on Aug. 26, 2005 Ethics Red Herring
By Marshall Manson
In the ever-growing list of red herring attacks on John Roberts, few have been more obscenely irresponsible and shameful than Senator Schumerââ‚â„¢s implication that the Judge committed an ethical breech by participating in the military tribunals case while the White House was considering him for elevation.
Questioning the ethics of a sitting federal judge is a serious matter. In this case, Schumer and Feingold, both lawyers, should know better. Of course Judge Roberts didnââ‚â„¢t commit an ethical violation. There was no vacancy on the High Court at the time he was meeting with the White House, and he was aware that he was one of several candidates being vetted. Indeed, Justice Breyer, in a very similar circumstance before his nomination to the High Court, didnââ‚â„¢t recuse and no one dreamed of making an issue of it. Practically, if a judge on the D.C. Circuit had to recuse from any case involving the government anytime he or she chatted with someone from the executive branch, there wouldnââ‚â„¢t be a single judge available.
Short of calling his honesty into question (which the Left will doubtless do shortly), itââ‚â„¢s hard to imagine a more personal and insulting attack then questioning Judge Robertsââ‚â„¢ ethics.
A sitting federal judge should be treated with respect. And the Senateââ‚â„¢s confirmation process for a nominee to the Supreme Court should be civil and courteous. Making gratuitous and frivolous charges about the nomineeââ‚â„¢s ethics is neither respectful nor courteous.
And so, yet again, the Left and its puppets in the Senate demonstrate that they will stoop to any level, no matter how pathetic, to smear Judge Roberts.
Get ready. Itââ‚â„¢s only going to get worse when the hearing starts.
Posted in Roberts —
Posted at 5:35pm on Aug. 25, 2005 The Incoherent Mario Cuomo
By Carol Platt Liebau
This piece in today's LA Times from Mario Cuomo gives new meaning to the phrase from Macbeth -- it truly is "full of sound and fury; signifying nothing." (Of course, this isn't the first example of Cuomo mouth-over-mind disease).
Titled "Put a little faith in Roberts," the subhead reads as follows: "Go ahead, ask him about his religious beliefs. As long as he puts the Constitution first, there should be no problem."
Mario Cuomo begins by arguing that "[C]onservative clerics and politicians" "demand that Catholic officials make political decisions reflecting their religious belief that abortion is tantamount to murder and work to overturn Roe vs. Wade and other laws that make abortion legal."
So from the outset, he misstates the facts. No conservative that I've ever known has ever presumed to demand that Catholics make political decisions in conformity with their religion. Conservatives have merely pointed out that many liberal Catholic politicians -- who make it a point to be seen prominently at Mass -- often decline to follow their own Church's teachings in their political dealings.
He then goes on to note:
Article VI of the Constitution states two things: first, that all officials â₆"judges as well as legislators" â₆must take an oath swearing that they will support the Constitution as "the supreme law of the land," their personal beliefs to the contrary notwithstanding. It also states that no religious test shall be required as a qualification for any public office.
Generally, the courts have interpreted this to mean that no one shall be required to profess or deny a religious belief in order to be deemed qualified for public office.
Finally, a little later, he adds:
No one is suggesting that being a Catholic or any kind of believer could by itself be a disqualification for a seat on the Supreme Court. . . . The question about Roberts' beliefs in effect asks whether he would impose his own personal test, religious or otherwise, on his reading of the Constitution: Would he say he might ignore his oath to support the Constitution if faced with an overriding personal belief?
So it seems that Mario Cuomo has adopted a stance that -- what?
(1) If the only question for Judge Roberts is whether he would impose any "personal test" (religious or otherwise) above the administration of the Constitution, there's no argument about that -- it's an entirely proper question. Of course, when a public official swears to "support the Constitution as 'the supreme law of the land,'" as Cuomo puts it, he implicitly pledges that there will be no "personal test." But whatever. If all Governor Cuomo's concerns can be addressed by the posing of a redundant question, by all means, let's do it!
(2) If, on the other hand, as the subhead reads (and in fairness, authors often don't title their own pieces), the issue is asking Judge Roberts about his religious beliefs, the question would be -- if the judge swears to uphold the Constitution -- what is the point? Surely the Senate isn't simply seeking to hold a seminar on the fine points of Catholic theology. Rather, the questions would be asked as part of the senators' efforts to discern Judge Roberts' fitness to sit on the Supreme Court. And if that's the case, by Governor Cuomo's own definition above, it would constitute an unconstitutional religious test -- that is, a situation where Judge Roberts' profession or denial of a particular religious belief would be used in determining his qualifications for the Supreme Court.
In short, Mario Cuomo is trying to create a dilemma where none exists. Of course, any nominee can be asked whether there is any consideration -- religious or otherwise -- that would prevent him from fulfilling his oath to uphold the Constitution. And of course no one can be quizzed on the substance of his/her religious beliefs, when the answer is going to play a part in the determination of whether they're qualified for a government job. So the end result of the Governor's pontifications is: You can require primary allegiance to the Constitution, you can't impose a religious test. Tres simple, non? So where's the "Hobson's choice" for Roberts that Cuomo gleefully posits?
A little research into the stance of another Catholic on the Supreme Court, Justice Scalia, would have saved valuable column space for the LA Times, tedium for its readers, and embarassment for Governor Cuomo. Justice Scalia noted that "the choice for the judge who believes [a legally unobjectionable law] to be immoral is resignation rather than simply ignoring duly enacted constitutional laws and sabotaging the [law at issue].â�
Yes, tres simple.
Posted in Analysis and Predictions —
Posted at 2:44pm on Aug. 25, 2005 Humorless Liberals
By Carol Platt Liebau
Senator Dianne Feinstein (D-CA) is "vexed" (as this AP story puts it) about written comments that flowed from John Roberts' sharp eye and keen pen -- more than twenty years ago.
True, liberals do seem to have ever-shifting standards that they apply to Republican presidents' nominees. But has it really come to the point where some snarky little written commments (many of them quite funny) by a young man two decades ago is a federal issue?
No wonder feminists are stereotyped as humorless. Lighten up, Sen. Feinstein. And, by the way, this entire episode is pretty revealing about the senator's character and priorities. She waxes indignant over some tongue-in-cheek remarks from a twenty-something, but I don't recall her objecting to some of the crass, obscene and inappropriate junk that passes for humor on the left. Selective outrage, perhaps?
Posted in Judiciary Committee —
Posted at 3:11am on Aug. 25, 2005 Who is James Flug?
By Carol Platt Liebau
Robert Novak reports on Teddy Kennedy's garbage man -- I mean, "gunslinger."
Posted in Judiciary Committee —